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UNREASONABLE SEARCH AND SEIZURE CASES VALMONTE VS. DE VILLA

G.R. No. 83988 September 29, 1989 This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people. Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP. The factual background of the case is as follows: On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila. Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant. Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed. Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawful search and seizure or other rights. In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any of their rights were violated are not qualified to bring the action, as real parties in interest. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 5 Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 6 Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable search.
7

or

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote

Page 2 of 217 public welfare and an individual's right against a warrantless search which is however reasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10 WHEREFORE, the petition is DISMISSED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Separate Opinions CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness.

Page 3 of 217 In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." ( Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. ( Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition. Separate Opinions CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution.

Page 4 of 217 Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." ( Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. ( Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.

PEOPLE VS. ESCAO

G.R. Nos. 129756-58 January 28, 2000 Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4, Article II of Republic Act No. 6425,1 as amended. Escao and Usana were also charged in Criminal Case No. 95-937 and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866. The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another, without being authorized by law, did then and there willfully, unlawfully and feloniously sell, distribute and transport 3.3143 kilograms of "HASHISH", a prohibited drug, in violation of the above-cited law.2 The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control one (1) pc. of cal. .45 pistol, government model with Serial No. 990255, with magazine

Page 5 of 217 containing 7 live ammos and two (2) more magazines for cal. .45 pistol containing 7 live ammos each, without first securing the necessary license or permit from the proper government authorities and which firearm and ammunitions he carried outside of his residence.3 The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control One (1) pc. of rifle carbine with Serial No. 7176644 with a banana type magazine loaded with 28 live ammunitions without first securing the necessary license or permit from the proper government authorities and which firearms and ammunitions he carried outside of his residence.4 The cases were consolidated and jointly tried. In its Decision of 30 May 1997,5 which was promulgated on 17 June 1997, the trial court convicted Escao and herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana in Criminal Case No. 95-938. Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal of Appeal, 6 which was granted by the trial court in its Order of 1 7 July 1997.7 Usana and Lopez filed a Notice of Appeal on 30 June 1997,8 manifesting therein that they were appealing to this Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No. 95-936 was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal Case No. 95-938. In its Order of 30 June 1997,9 the trial court gave due course to the appeal and ordered the transmittal of the record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938 to the Court of Appeals. Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court. Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players in this case. The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban, some law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los Santos, and Inspector Ernesto Guico, 10 were manning a checkpoint at the corner of Senator Gil Puyat Ave. and the South Luzon Expressway (SLEX). 11 They were checking the cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a Kia Pride car with Plate No. TBH 493.12 PO3 Suba saw a long firearm on the lap of the person seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open the door. PO3 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were search for more weapons. Their search yielded a .45 caliber firearm which they seized from Escao. 13 The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3 Nonato. 14 Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los Santos was suspicious of the vehicle, he requested Escao to open the trunk.15 Escao readily agreed and opened the trunk himself using his key.16 They noticed a blue bag inside it,17 which they asked Escao to open. The bag contained a parcel wrapped in tape,18 which, upon examination by National Bureau of Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms.19 A certification was issued by the Firearms and Explosive Office of the National Police Commission (NAPOLCOM) to the effect that Escao was not a licensed/registered firearms holder of any kind and caliber. Usana, however, according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber with license issued on 14 October 1994 and to expire on April 1996. Usana also has an application for a pistol Uzi Cal. 9mm. Neither of the two guns seized were licensed/registered with the NAPOLCOM.20 For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning, he was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners, including Usana and Lopez. He saw his friend and erstwhile co-employee at Philippine Airlines, Ramon Cabrera, who had borrowed his wife's car. Since it was his wife's birthday the following day, he asked Cabrera if he could get back the car. Cabrera readily gave him the keys of the car. 21 He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wife's car, they cruised southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They stopped before crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see a group of policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed down and stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He asked if he had committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The policemen persisted in asking for his license, but he did not budge and instead reiterated that there was no reason for him to surrender his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of firearms by the policemen which prompted Usana to suggest that they go to the police station because the policemen were carrying guns and they have not done anything wrong. 22

Page 6 of 217 He stated further that he was the one who drove to the police station along Dian St. with his companions. He parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco.23 The policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they needed to conduct a search when they had not even told him what he had violated. Apparently, he thought they were there only for verification purposes. Lt. Eco explained that that was the reason why they were going to search his car, to see if he had done anything illegal. Although the police were insistent in asking for the keys to his car, he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell. 24 After two hours, he was brought back to Lt. Eco's office. Lt. Eco pointed to a bag, a rifle, a pistol and a package wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal possession of firearms and transporting of drugs. He was surprised that they found those items from his car because his key had been with him all the time. He was handcuffed, brought to his car, and again was surprised to see its trunk open.25 On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in the same subdivision.26 On 4 April 1995, he was working on Usana's pick-up truck at the latter's house when Escao dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes Park. 27 At around 5:30 p.m., they left Usana's house in Escao's metallic gray Kia Pride. Inside the car, he saw a .45 caliber pistol and two spare magazines tucked in the right side and left side of Escao's waist. He also saw a carbine under the right passenger seat. When he inquired about the guns, Escao replied that such did not pose any problem since they were licensed. Before going to Usana, they went to Pasay City to see a certain jerry.28 They met Usana at the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was unaware if the latter noticed the rifle beneath the seat.29 They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The policemen directed their flashlights at them and one opened the front passenger door.30 The latter saw the rifle under Usana's seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw the gun tucked in Escao's waist and asked if he was a policeman. Escao replied that everything would be explained at the police station. He was also asked to step out. No firearm was, however, found in his possession.31 When confronted about the guns, Escao tried to intercede for his two companions and said that ". . . these two don't know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A certain Toto, a policeman, drove the Kia Pride to Block 5.32 Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk to him. He told him that all he knew about Escao is that he was a wealthy flight attendant with military connections. After returning to Lt. Eco's office, PO3 de los Santos went out of the police station with Lt. Eco and Escao. The three came back with a blue bag which he had never seen before. The bag was opened before the three suspects. Escao reiterated that his two companions had nothing to do with the bag. 33 He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00 p.m., they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he owned the bag/case. 34 For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de Asis and Taytay Management Corporation.35 He admitted owning a licensed .45 caliber pistol.36 In March 1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on the other hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an international flight attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also supplied materials to the Philippine Army and planned to engage in a construction business.37 On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype gunship helicopters they were supposed to supply. They talked on the phone, agreeing to meet between 8:30 and 9:00 p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit,38 and met at around a quarter past nine. Escao was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for him. They went to Magallanes Village to meet a certain Norman Garcia and talk about the documents39 relating to the helicopter gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with Garcia, he noticed a gun and magazines tucked in Escao's waist. Upon inquiry, Escao said it was not a problem and only for his protection.40 On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil Puyat Ave. Policemen knocked on the car windows so he and Escao rolled down their windows. A person in civilian clothes suddenly opened the right door, took something from the side of his seat and shouted, "There's a gun." He was surprised because he did not carry anything when he bearded the car; neither did he see anything inside the car because it was dark and he was not wearing his eyeglasses. 41 The person who took the gun asked if he was a policeman, and he said he was an architect. He was then asked to alight from the car, then frisked. Escao was also asked to alight from a car. They saw a gun tucked in his waist, so they asked if he was a policeman, and Escao answered in the negative. Lopez was then ordered to get out of the car by the person in civilian clothes and was also searched. They rode the Anfra service vehicle of the police. One of the policemen asked Lopez to handcuff him and Escao. The policeman who asked Escao to get out of the car drove the Anfra van to Block 5 where they arrived at 1:30 in the morning of 5 April.42 He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with Escao and that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the office of Lt. Eco and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato, Suba and Erwin Eco, the person in civilian clothes. All six went out to the parking area

Page 7 of 217 and returned after about five minutes. Lt. Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked about the contents of the bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag before them. They all saw something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about the contents of the bag, and they implored Escao to tell the police that they had nothing to do with it.43 The trial court found the prosecution's version more credible than that of any one of the accused, and ruled that the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed: WHEREFORE, in view of the foregoing judgment is hereby rendered as follows: 1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME and JERRY LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer imprisonment ofRECLUSION PERPETUA, and to pay a fine of P500,000.00. The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314 kilograms of Hashish (marijuana) for its appropriate disposition in accordance with law; and 2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and VIRGILIO USANA y TOME are GUILTY as charged in the two separate informations respectively filed against them and are sentenced to suffer the indeterminate prison term from TEN (10) YEARS of PRISION MAYOR maximum, as minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of RECLUSION TEMPORAL maximum as maximum.44 The firearms and ammunitions subject matter of these cases which are still with the City Prosecutor's Office are forfeited in favor of the Government are directed to be turned over to the Firearms and Explosive Unit, PNP, Camp Crame, Quezon City for its appropriate disposition. SO ORDERED.45 Accused-appellants Usana and Lopez anchor their appeal on the following arguments: 1. The trial court erred in admitting in evidence the hashish seized without search warrant when the police officers already had the opportunity to secure a search warrant before searching the bag found at the baggage compartment at the back of the car; 2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants to have conspired with Escao in transporting the hashish when the evidence clearly shows that the hashish was owned and possessed solely by Escao; 3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact that they were neither in actual nor constructive possession of the illegal drug; and 4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of appellants. Before going any further, some words are in order regarding the establishment of checkpoints. Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner. We take judicial notice of the existence of the COMELEC resolution46 imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period. This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed.47 For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists' right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle's occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.48 The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which

Page 8 of 217 such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car's doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated.49 Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car. Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search incidental to an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented warrantless search;50 and (6) stop-and-frisk situations.51 Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez and Usana testified that Escao was with the police officers when they searched the car.52 There was no apparent objection made by Escao as he seemed to have freely accompanied the police officers to the car. PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de los Santos.53But according to Escao, he refused the request of the police officers to search his car.54 We must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that Escao freely accompanied the police officers to the car, it is also deemed admitted by Escao in failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against him. Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No. 6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the car's trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival at the police station and until the opening of the car's trunk, the car was in the possession and control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been with Escao in the latter's car before the "finding" of the hashish sometime after the lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized.1wphi1.nt IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court, Makati, Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-appellants VIRGILIO T. USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No. 6425, as amended, is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING them therein on ground of reasonable doubt and ORDERING their immediate release from confinement at the New Bilibid Prison, unless their further detention is justified for any lawful ground. The Director of the Bureau of Corrections is hereby directed to report to the Court the release of said accused-appellants within five (5) days from notice of this decision. SO ORDERED.

PEOPLE VS. SYJUCO (DEFENDANT) & REMO (PETITIONER)

G.R. No. L-41957 August 28, 1937
Upon petition of the agent and representatives of the Bureau of Internal Revenue, named Narciso Mendiola, who alleged that, according to information given him by a person whom he considered reliable, certain fraudulent bookletters and papers or records were being kept in the building marked No. 482 on Juan Luna Street, Binondo, Manila, occupied by Santiago Sy Juco, a warrant to search the building in question was issued against said person on March 7, 1933, by the Court of First Instance of Manila, through Judge Mariano A. Albert. In said warrant, the peace officers to whom it was directed for execution were required to seize the abovestated articles for the purpose of delivering them to the court, for the proper action to be taken in due time. After making the required search the officers concerned seized, among things, an art metal filing cabinet claimed by Attorney Teopisto B. Remo to be his and to contain some letters, documents and papers belonging to his clients. Inasmuch as said officers later refused to return the filing cabinet in question to him, he filed a petition in the Court of First Instance of Manila, praying that the Collector of Internal Revenue and his agents be prohibited from opening said art metal filing cabinet and that the sheriff of the City of Manila likewise be ordered to take charge of said property in the meantime, on the ground that the warrant by virtue of which the search was made is null and void, being illegal and against the Constitution. A similar petition was later filed in the same case by the Salakan Lumber Co., Inc., the same agents of the Bureau of Internal Revenue having also seized some books belonging to it by virtue of the abovementioned search warrant.

Page 9 of 217 After due hearing, the Court of First Instance through Judge Delfin Jaranilla, decided to overrule both petitions, declaring that the art metal filing cabinet and the books and papers claimed by the Salakan Lumber Co., Inc., would be returned to Attorney Teopisto B. Remo and to the company, respectively, as soon as it be proven, by means of an examination thereof to be made in the presence of the interested parties, that they contain nothing showing that they have been used to commit fraud against the Government. Only Attorney Teopisto B. Remo appealed from the decision of the court and he now contends that it committed the nine errors assigned by him as follows: 1. The lower court erred in not holding that the search warrant, Exhibit B, issued in the case at bar is unconstitutional and void ab initio and hence can confer no legal right upon the Government to seize, much less to retain or open the filing cabinet in question, Exhibit 3. 2. The lower court erred in not holding that the search warrant, which is void ab initio may not be legalized by evidence secured subsequent to the issuance, or in consequence, of said illegal search warrant. 3. The lower court erred in not holding that the doctrine of the case of People vs. Rubio (G. R. No. 35500, 57 Phil., 384), is not applicable to the case at bar. 4. The lower court erred in not holding that the search warrant, Exhibit B, was procured in order to obtain evidence against the defendant Santiago Sy Juco. 5. The lower court erred in not holding that the search warrant, Exhibit B, was issued solely against the premised occupied by the defendant Santiago Sy Juco, and hence cannot be used against the premises occupied by a stranger, or the petitioner, Teopisto B. Remo. 6. The lower court erred in not holding that the filing cabinet, Exhibit 3, is the personal property of the petitioner, Teopisto B. Remo, and not of the defendant Santiago Sy Juco. 7. The lower court erred in not upholding the inviolability of the contents of the filing cabinet, Exhibit 3, the same being confidential documents entrusted to the herein petitioner, Attorney Teopisto B. Remo, by his clients, in his professional capacity and in connection with cases pending before the courts of justice and administrative tribunals. 8. The lower court erred in not holding that the Internal Revenue agents gave infringed the penal laws not only by procuring the search warrant, Exhibit B, against the premises of the defendant, Santiago Sy Juco, without just cause, but also by exceeding their authority in enforcing said search warrant against the premises of the petitioner, Teopisto B. Remo, who is stranger to said search warrant, which acts also constitute a violation of the domicile of said petitioner; and in not endorsing the matter to the city fiscal for proper action. 9. The lower court erred in not ordering the return of the filing cabinet, Exhibit 3, intact and unopened, to its lawful owner, the petitioner Teopisto B. Remo. The pertinent part of the search warrant in question was couched in the following language: Proof by affidavit having this day been made before me, Mariano Albert, Judge of the Court of First Instance of the City of Manila, Philippine Islands, by the complainant on oath of Narciso Mendiola, special investigator, Bureau of Internal Revenue, Manila, that the defendant, Santiago Sy Juco, of No. 482 Juan Luna, Manila, keeps illegally and feloniously fraudulent books, correspondence, and records and that he verily believes upon probable cause that the said books, correspondence and records at No. 482 Juan Luna, Manila, and the said (personal) property is now being used in the commission of fraud of the revenue of the Government. You are therefore commanded to take with you the necessary and proper assistance and to enter, in the daytime, into the said premises and there diligently search for fraudulent books, correspondence and records and that you seize and bring them before the court to be disposed of according to law. Given under my hands this 7th day of March, 1933, in the City of Manila. [SEAL] (Sgd.) MARIANO A. ALBERT Judge of Court of First instance of Manila The affidavit or deposition referred to in the warrant above-quoted contained the following questions and answers: TESTIMONY TAKEN BEFORE HON. JUDGE MARIANO A. ALBERT, Narciso Mendiola, being duly sworn, testifies as follows: Q. What is your name, residence and occupation? A. Narciso Mendiola, special investigator, Bureau of Internal Revenue, Manila.

Page 10 of 217 Q. Are you the applicant for this search warrant? A. Yes, sir. Q. do you know the premises situated at No. 482 Juan Luna, Manila? A. Yes, sir. Q. Do you know who occupy said premises? A. According to the best of my information, the house is occupied by Santiago Sy Juco. Q. What are your reasons for applying for a search warrant? A. It has been reported to us by person whom I considered reliable that in said premises are fraudulent books, correspondence and records. I. Narciso Mendiola, being duly sworn, depose and say that I have read the foregoing questions and answers and that I found the same to be correct and true to the best of my knowledge and belief. (Sgd.) NARCISCO MENDIOLA. Subscribed and sworn to before me this 7th day of March, 1933, in the City of Manila, P. I. [SEAL] (Sgd.) MARIANO A. ALBERT Judge, Court of First Instance, Manila It appears clear to this court that the question that the appellant wishes to raise by means of the allege errors attributed by him to the lower court, may be reduced to the following: 1. Is the search warrant in question valid or not, taking into consideration the provisions of the law and of the Constitution relative thereto? 2. Does the art metal filing cabinet seized by the agents of the Bureau of Internal Revenue belong to Santiago Sy Juco or to Teopisto B. Remo? 3. Could the search warrant in question affect Attorney Teopisto B. Remo, not being the person against whom it was directed? 4. Had the court authority to order the opening of the cabinet in question for the purpose of determining, by an examination of the books, documents and records contained therein, whether or not same were used to commit fraud against the Government? 1. A question which is very similar to the first one herein raised by the appellant, has been decided by this court in the negative in its judgment rendered in the case of Alvarez vs. Court of First Instance of Tayabas and Anti Usury Board , p. 33, ante. According to our laws in force on the date in question, which do not differ substantially from the provisions of the Constitution of the Commonwealth in matters regarding search, in order that a search warrant may be valid, the following requisites, among others, must be present: That the application upon which it is issued be supported by oath; That the search warrant particularly describes not only place to be searched but also the person or thing to be seized and that there be probable cause (sec. 97, General Orders, No. 58: sec. 3, Jones Law; Article III, sec. 1, paragraph 3, Constitution of the Commonwealth). In the above-cited case of Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, supra, and in that of United States vs. Addison (28 Phil., 566), this court held that the oath required must be such that it constitutes a guaranty that the person taking it has personal knowledge of the facts of the case and that it convince the committing magistrate, not the individual seeking the issuance of the warrant or the person making the averment by hearsay, of the existence of the requisite of probable cause. It has likewise been held by this court that by probable cause are meant such facts and circumstances antecedent to the issuance thereof. It has furthermore been held that the true test of the sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon in case the allegations contained therein prove false (Sate vs. Roosevelt, 244 Pac., 280), and that the provisions of the Constitution and the statutes relative to searches and seizures must be construed liberally in favor of the individual who may be affected thereby, and strictly against the State and against the person invoking them for the issuance of the warrant ordering their execution (Elardo vs. State of Misissippi, 145 So., 615; Fowler vs. U. S., 62 Fed. [2d], 656; Saforik vs. U. S. Feed. [2d], 892; Boyd vs. U. S., 116 U. S., 616; 29 Law. ed., 746), for the simple reason that the proceedings of search and seizure are, by their very nature, summary and drastic ones (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, supra, and the authorities cited therein). By reading the affidavit which gave rise to the issuance of the search warrant in question, it will be seen that the latter does not fulfill the necessary conditions in support of its validity. In the first place, it is not stated in said affidavit that the books, documents or records referred to therein are being used or are intended to be used in the commission of fraud against the Government and, notwithstanding the lack of such allegation, the warrant avers that they are actually being used for such purpose. In the second place, it assumes that the entire building marked No. 482 on Juan Luna Street is occupied by Santiago Sy Juco against whom the warrant was exclusively issued, when the only ground upon which such assumption is based is Narciso Mendiola's statement which is mere hearsay and when in fact part thereof was occupied by the appellant. In the third place, it was not asked that the things

Page 11 of 217 belonging to the appellant and to others also be searched. In otherwords, the warrant in question has gone beyond what had been applied for by Narciso Mendiola and the agent who executed it performed acts not authorized by the warrant, and it is for this and the above-stated reason why it is unreasonable, it being evidence that the purpose thereof was solely to fish for evidence or search for it by exploration, in case some could be found. It is of common knowledge that search warrants have not been designed for such purpose (Gouled vs. U. S., 255 U. S., 298, S. C. R., 65 Law. ed., 647; Uy Kheytin vs. Villareal, 42 Phil., 886) much less in a case as the one under consideration where it has not even been alleged in the affidavit of Narciso Mendiola what crime had been committed by Santiago Sy Juco or what crime he was about commit. On this point said affidavit merely contained the following allegation: "It has been reported to us by a person whom I considered reliable that in said premises are fraudulent books, correspondence and records." Therefore, the first question raised should be decided in the negative. 2. The resolution of the second question depends entirely on the nature of the evidence presented and the relative preponderance thereof. The only witness who testified that the art metal filing cabinet belongs to the accused Santiago Sy Juco, is Macario Garcia. Against Garcia's testimony, we certainly have that of the appellant himself and his witnesses Rufino C. Wenceslao, Vicente del Rosario, Jose Jeuquenco and Feliciano Belmonte, besides Exhibits E, F, G, H and L, which conclusively proves that the furniture in question was purchased by said appellant at the beginning of January, 1933, and that he had it precisely in a room on one of the upper floors of building No. 482 on Juan Luna Street, which he was then subleasing from Santiago Sy Juco, to keep his records and those of his clients. On the otherhand, it is unimportant now to determine whether the furniture in question belongs to Santiago Sy Juco or to the appellant Attorney Topisto B. Remo. It should have been alleged at the time he applied for the issuance of the search warrant, to show with the other allegations, reason and evidence that the issuance thereof was justified because of the existence of probable cause, the latter being a requisite without which the issuance of the judicial warrant authorizing such search would be unwarranted. For these reasons, this court concludes that the second question raised calls for an answer in the negative. 3. After the considerations just made, the third question cannot be resolved except in the negative. The search warrant in question could not and should not in any way affect the appellant attorney on the ground that he is not the person against whom it had been sought. It is Santiago Sy Juco alone against whom the search warrant could be used, because it had been obtained precisely against him; so much so that Narciso Mendiola, who applied for it, mentioned him expressly in his affidavit and again did so in his report to his superior, that is, the Collector of Internal Revenue (Exhibit C); and at the trial of this case, it was insisted that there was necessity of making the search in the premises occupied by Santiago Sy Juco because an investigation was then pending against him, for having defrauded the Government in its public revenue. The doctrine laid down in the case of People vs. Rubio(57 Phil., 384), invoked against the appellant, is not applicable to the case at bar because, unlike in the above-cited case, neither books nor record indicating fraud were found in his possession, and it is not he against whom the warrant was issued. 4. It is clear that the court could not and can not order the opening of the art metal filing cabinet in question because, it having been proven that it belongs to the appellant attorney and that in it he keeps the records and documents of his clients, to do so would be in violation of his right as such attorney, since it would be tantamount to compelling him to disclose or divulge facts or things belonging to his clients, which should be kept secret, unless she is authorized by them to make such disclosure, it being a duty imposed by law upon an attorney to strictly preserve the secrets or communications made to him. Such an act would constitute a qualified violation of section 383, No. 4, and of section 31 of Act No. 190, which read as follows: An attorney can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary stenographer, or clerk be examined, without the consent of client and his employer, concerning any fact, the knowledge of which has been acquired in such capacity. (Sec. 383, No. 4, Act No. 190.) A lawyer must strictly maintain inviolate the confidence and preserve the secrets of his client. He shall not be permitted in any court without the consent of his client, given in open court, to testify to any facts imparted to him by his client in professional consultation, or for the purpose of obtaining advice upon legal matters. (Sec. 31, Act No. 190.) For all the foregoing reasons, and finding that the errors assigned by the appellant are very well founded, the appealed judgment is reversed, and it is ordered that the art metal filing cabinet, together with the key thereof seized by the internal revenue agent by virtue of the judicial warrant in question, which is hereby declared null and void, be immediately returned unopened to the appellant; and that a copy of this decision be sent to the Solicitor-General for him to take action, if he deems it justified, upon careful investigation of the facts, against the internal revenue agent or agents who obtained and executed the warrant in question, in accordance with the provisions of article 129 of the Revised Penal Code, without special pronouncement as to costs. So ordered.

WEBB VS. DE LEON

G.R. No. 121234 August 23, 1995
Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other

Page 12 of 217 persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales andMila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former livein partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements ofNormal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his

Page 13 of 217 friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his copetitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

Page 14 of 217 (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

Page 15 of 217 In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a coconspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima facie case that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his

Page 16 of 217 pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . .amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car.

Page 17 of 217 On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.

Page 18 of 217 II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Page 19 of 217 The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses . Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a " Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court

Page 20 of 217 dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed;

Page 21 of 217 (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Page 22 of 217 Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for 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." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve

Page 23 of 217 an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED. Regalado, J., concurs. Mendoza, J., concurs in the result. Narvasa, C.J., is on leave.

Page 24 of 217 Separate Opinion FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs. Separate Opinion FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged

Page 25 of 217 (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions.

COLUMBIA PICTURES VS. CA

G.R. No. 110318 August 28, 1996
Before us is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated on July 22, 1992 and its resolution 2 of May 10, 1993 denying petitioners' motion for reconsideration, both of which sustained the order 3 of the Regional Trial Court, Branch 133, Makati, Metro Manila, dated November 22, 1988 for the quashal of Search Warrant No. 87-053 earlier issued per its own order 4 on September 5, 1988 for violation of Section 56 of Presidential Decree No. 49, as amended, otherwise known as the "Decree on the Protection of Intellectual Property." The material facts found by respondent appellate court are as follows: Complainants thru counsel lodged a formal complaint with the National Bureau of Investigation for violation of PD No. 49, as amended, and sought its assistance in their anti-film piracy drive. Agents of the NBI and private researchers made discreet surveillance on various video establishments in Metro Manila including Sunshine Home Video Inc. (Sunshine for brevity), owned and operated by Danilo A. Pelindario with address at No. 6 Mayfair Center, Magallanes, Makati, Metro Manila. On November 14, 1987, NBI Senior Agent Lauro C. Reyes applied for a search warrant with the court a quo against Sunshine seeking the seizure, among others, of pirated video tapes of copyrighted films all of which were enumerated in a list attached to the application; and, television sets, video cassettes and/or laser disc recordings equipment and other machines and paraphernalia used or intended to be used in the unlawful exhibition, showing, reproduction, sale, lease or disposition of videograms tapes in the premises above described. In the hearing of the application, NBI Senior Agent Lauro C. Reyes, upon questions by the court a quo, reiterated in substance his averments in his affidavit. His testimony was corroborated by another witness, Mr. Rene C. Baltazar. Atty. Rico V. Domingo's deposition was also taken. On the basis of the affidavits and depositions of NBI Senior Agent Lauro C. Reyes, Rene C. Baltazar and Atty. Rico V. Domingo, Search Warrant No. 87-053 for violation of Section 56 of PD No. 49, as amended, was issued by the court a quo. The search warrant was served at about 1:45 p.m. on December 14, 1987 to Sunshine and/or their representatives. In the course of the search of the premises indicated in the search warrant, the NBI Agents found and seized various video tapes of duly copyrighted motion pictures/films owned or exclusively distributed by private complainants, and machines, equipment, television sets, paraphernalia, materials, accessories all of which were included in the receipt for properties accomplished by the raiding team. Copy of the receipt was furnished and/or tendered to Mr. Danilo A. Pelindario, registered owner-proprietor of Sunshine Home Video.

Page 26 of 217 On December 16, 1987, a "Return of Search Warrant" was filed with the Court. A "Motion To Lift the Order of Search Warrant" was filed but was later denied for lack of merit (p. 280, Records). A Motion for reconsideration of the Order of denial was filed. The court a quo granted the said motion for reconsideration and justified it in this manner: It is undisputed that the master tapes of the copyrighted films from which the pirated films were allegedly copies (sic), were never presented in the proceedings for the issuance of the search warrants in question. The orders of the Court granting the search warrants and denying the urgent motion to lift order of search warrants were, therefore, issued in error. Consequently, they must be set aside. (p. 13, Appellant's Brief) 5 Petitioners thereafter appealed the order of the trial court granting private respondents' motion for reconsideration, thus lifting the search warrant which it had theretofore issued, to the Court of Appeals. As stated at the outset, said appeal was dismissed and the motion for reconsideration thereof was denied. Hence, this petition was brought to this Court particularly challenging the validity of respondent court's retroactive application of the ruling in 20th Century Fox Film Corporation vs. Court of Appeals, et al., 6 in dismissing petitioners' appeal and upholding the quashal of the search warrant by the trial court. I Inceptively, we shall settle the procedural considerations on the matter of and the challenge to petitioners' legal standing in our courts, they being foreign corporations not licensed to do business in the Philippines. Private respondents aver that being foreign corporations, petitioners should have such license to be able to maintain an action in Philippine courts. In so challenging petitioners' personality to sue, private respondents point to the fact that petitioners are the copyright owners or owners of exclusive rights of distribution in the Philippines of copyrighted motion pictures or films, and also to the appointment of Atty. Rico V. Domingo as their attorney-in-fact, as being constitutive of "doing business in the Philippines" under Section 1 (f)(1) and (2), Rule 1 of the Rules of the Board of Investments. As foreign corporations doing business in the Philippines, Section 133 of Batas Pambansa Blg. 68, or the Corporation Code of the Philippines, denies them the right to maintain a suit in Philippine courts in the absence of a license to do business. Consequently, they have no right to ask for the issuance of a search warrant. 7 In refutation, petitioners flatly deny that they are doing business in the Philippines, 8 and contend that private respondents have not adduced evidence to prove that petitioners are doing such business here, as would require them to be licensed by the Securities and Exchange Commission, other than averments in the quoted portions of petitioners' "Opposition to Urgent Motion to Lift Order of Search Warrant" dated April 28, 1988 and Atty. Rico V. Domingo's affidavit of December 14, 1987. Moreover, an exclusive right to distribute a product or the ownership of such exclusive right does not conclusively prove the act of doing business nor establish the presumption of doing business. 9 The Corporation Code provides: Sec. 133. Doing business without a license. No foreign corporation transacting business in the Philippines without a license, or its successors or assigns, shall be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of the Philippines; but such corporation may be sued or proceeded against before Philippine courts or administrative tribunals on any valid cause of action recognized under Philippine laws. The obtainment of a license prescribed by Section 125 of the Corporation Code is not a condition precedent to the maintenance of any kind of action in Philippine courts by a foreign corporation. However, under the aforequoted provision, no foreign corporation shall be permitted to transact business in the Philippines, as this phrase is understood under the Corporation Code, unless it shall have the license required by law, and until it complies with the law intransacting business here, it shall not be permitted to maintain any suit in local courts. 10 As thus interpreted, any foreign corporation not doing business in the Philippines may maintain an action in our courts upon any cause of action, provided that the subject matter and the defendant are within the jurisdiction of the court. It is not the absence of the prescribed license but "doing business" in the Philippines without such license which debars the foreign corporation from access to our courts. In other words, although a foreign corporation is without license to transact business in the Philippines, it does not follow that it has no capacity to bring an action. Such license is not necessary if it is not engaged in business in the Philippines. 11 Statutory provisions in many jurisdictions are determinative of what constitutes "doing business" or "transacting business" within that forum, in which case said provisions are controlling there. In others where no such definition or qualification is laid down regarding acts or transactions failing within its purview, the question rests primarily on facts and intent. It is thus held that all the combined acts of a foreign corporation in the State must be considered, and every circumstance is material which indicates a purpose on the part of the corporation to engage in some part of its regular business in the State. 12

Page 27 of 217 No general rule or governing principles can be laid down as to what constitutes "doing" or "engaging in" or "transacting" business. Each case must be judged in the light of its own peculiar environmental circumstances. 13 The true tests, however, seem to be whether the foreign corporation is continuing the body or substance of the business or enterprise for which it was organized or whether it has substantially retired from it and turned it over to another. 14 As a general proposition upon which many authorities agree in principle, subject to such modifications as may be necessary in view of the particular issue or of the terms of the statute involved, it is recognized that a foreign corporation is "doing," "transacting," "engaging in," or "carrying on" business in the State when, and ordinarily only when, it has entered the State by its agents and is there engaged in carrying on and transacting through them some substantial part of its ordinary or customary business, usually continuous in the sense that it may be distinguished from merely casual, sporadic, or occasional transactions and isolated acts. 15 The Corporation Code does not itself define or categorize what acts constitute doing or transacting business in the Philippines. Jurisprudence has, however, held that the term implies a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of acts or works or the exercise of some of the functions normally incident to or in progressive prosecution of the purpose and subject of its organization. 16 This traditional case law definition has evolved into a statutory definition, having been adopted with some qualifications in various pieces of legislation in our jurisdiction. For instance, Republic Act No. 5455 17 provides: Sec. 1. Definitions and scope of this Act. (1) . . . ; and the phrase "doing business" shall include soliciting orders, purchases, service contracts, opening offices, whether called "liaison" offices or branches; appointing representatives or distributors who are domiciled in the Philippines or who in any calendar year stay in the Philippines for a period or periods totalling one hundred eighty days or more; participating in the management, supervision or control of any domestic business firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization. Presidential Decree No. 1789, 18 in Article 65 thereof, defines "doing business" to include soliciting orders, purchases, service contracts, opening offices, whether called "liaison" offices or branches; appointing representatives or distributors who are domiciled in the Philippines or who in any calendar year stay in the Philippines for a period or periods totalling one hundred eighty days or more; participating in the management, supervision or control of any domestic business firm, entity or corporation in the Philippines, and any other act or acts that imply a continuity of commercial dealings or arrangements and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization. The implementing rules and regulations of said presidential decree conclude the enumeration of acts constituting "doing business" with a catch-all definition, thus: Sec. 1(g). "Doing Business" shall be any act or combination of acts enumerated in Article 65 of the Code. In particular "doing business" includes: xxx xxx xxx (10) Any other act or acts which imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, or in the progressive prosecution of, commercial gain or of the purpose and object of the business organization. Finally, Republic Act No. 7042 19 embodies such concept in this wise: Sec. 3. Definitions. As used in this Act: xxx xxx xxx (d) the phrase "doing business shall include soliciting orders, service contracts, opening offices, whether called "liaison" offices or branches; appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totalling one hundred eight(y) (180) days or more; participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization: Provided, however, That the phrase "doing business" shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or officer to represent its interests in

Page 28 of 217 such corporation; nor appointing a representative or distributor domiciled in the Philippines which transacts business in its own name and for its own account. Based on Article 133 of the Corporation Code and gauged by such statutory standards, petitioners are not barred from maintaining the present action. There is no showing that, under our statutory or case law, petitioners are doing, transacting, engaging in or carrying on business in the Philippines as would require obtention of a license before they can seek redress from our courts. No evidence has been offered to show that petitioners have performed any of the enumerated acts or any other specific act indicative of an intention to conduct or transact business in the Philippines. Accordingly, the certification issued by the Securities and Exchange Commission 20 stating that its records do not show the registration of petitioner film companies either as corporations or partnerships or that they have been licensed to transact business in the Philippines, while undeniably true, is of no consequence to petitioners' right to bring action in the Philippines. Verily, no record of such registration by petitioners can be expected to be found for, as aforestated, said foreign film corporations do not transact or do business in the Philippines and, therefore, do not need to be licensed in order to take recourse to our courts. Although Section 1(g) of the Implementing Rules and Regulations of the Omnibus Investments Code lists, among others (1) Soliciting orders, purchases (sales) or service contracts. Concrete and specific solicitations by a foreign firm, or by an agent of such foreign firm, not acting independently of the foreign firm amounting to negotiations or fixing of the terms and conditions of sales or service contracts, regardless of where the contracts are actually reduced to writing, shall constitute doing business even if the enterprise has no office or fixed place of business in the Philippines. The arrangements agreed upon as to manner, time and terms of delivery of the goods or the transfer of title thereto is immaterial. A foreign firm which does business through the middlemen acting in their own names, such as indentors, commercial brokers or commission merchants, shall not be deemed doing business in the Philippines. But such indentors, commercial brokers or commission merchants shall be the ones deemed to be doing business in the Philippines. (2) Appointing a representative or distributor who is domiciled in the Philippines, unless said representative or distributor has an independent status, i.e., it transacts business in its name and for its own account, and not in the name or for the account of a principal. Thus, where a foreign firm is represented in the Philippines by a person or local company which does not act in its name but in the name of the foreign firm, the latter is doing business in the Philippines. as acts constitutive of "doing business," the fact that petitioners are admittedly copyright owners or owners of exclusive distribution rights in the Philippines of motion pictures or films does not convert such ownership into an indicium of doing business which would require them to obtain a license before they can sue upon a cause of action in local courts. Neither is the appointment of Atty. Rico V. Domingo as attorney-in-fact of petitioners, with express authority pursuant to a special power of attorney, inter alia To lay criminal complaints with the appropriate authorities and to provide evidence in support of both civil and criminal proceedings against any person or persons involved in the criminal infringement of copyright or concerning the unauthorized importation, duplication, exhibition or distribution of any cinematographic work(s) films or video cassettes of which . . . is the owner of copyright or the owner of exclusive rights of distribution in the Philippines pursuant to any agreement(s) between . . . and the respective owners of copyright in such cinematographic work(s), to initiate and prosecute on behalf of . . . criminal or civil actions in the Philippines against any person or persons unlawfully distributing, exhibiting, selling or offering for sale any films or video cassettes of which . . . is the owner of copyright or the owner of exclusive rights of distribution in the Philippines pursuant to any agreement(s) between . . . and the respective owners of copyright in such works. 21 tantamount to doing business in the Philippines. We fail to see how exercising one's legal and property rights and taking steps for the vigilant protection of said rights, particularly the appointment of an attorney-in-fact, can be deemed by and of themselves to be doing business here. As a general rule, a foreign corporation will not be regarded as doing business in the State simply because it enters into contracts with residents of the State, where such contracts are consummated outside the State.22 In fact, a view is taken that a foreign corporation is not doing business in the State merely because sales of its product are made there or other business furthering its interests is transacted there by an alleged agent, whether a corporation or a natural person, where such activities are not under the direction and control of the foreign corporation but are engaged in by the alleged agent as an independent business. 23 It is generally held that sales made to customers in the State by an independent dealer who has purchased and obtained title from the corporation to the products sold are not a doing of business by the corporation. 24Likewise, a foreign corporation which sells its products to persons styled "distributing agents" in the State, for distribution by them, is not doing business in the State so as to render it subject to service of process therein, where the contract with these purchasers is that they shall buy exclusively from the foreign corporation such goods as it manufactures and shall sell them at trade prices established by it. 25

Page 29 of 217 It has moreover been held that the act of a foreign corporation in engaging an attorney to represent it in a Federal court sitting in a particular State is not doing business within the scope of the minimum contact test.26 With much more reason should this doctrine apply to the mere retainer of Atty. Domingo for legal protection against contingent acts of intellectual piracy. In accordance with the rule that "doing business" imports only acts in furtherance of the purposes for which a foreign corporation was organized, it is held that the mere institution and prosecution or defense of a suit, particularly if the transaction which is the basis of the suit took place out of the State, do not amount to the doing of business in the State. The institution of a suit or the removal thereof is neither the making of a contract nor the doing of business within a constitutional provision placing foreign corporations licensed to do business in the State under the same regulations, limitations and liabilities with respect to such acts as domestic corporations. Merely engaging in litigation has been considered as not a sufficient minimum contact to warrant the exercise of jurisdiction over a foreign corporation. 27 As a consideration aside, we have perforce to comment on private respondents' basis for arguing that petitioners are barred from maintaining suit in the Philippines. For allegedly being foreign corporations doing business in the Philippines without a license, private respondents repeatedly maintain in all their pleadings that petitioners have thereby no legal personality to bring an action before Philippine Courts. 28 Among the grounds for a motion to dismiss under the Rules of Court are lack of legal capacity to sue 29 and that the complaint states no cause of action. 30 Lack of legal capacity to sue means that the plaintiff is not in the exercise of his civil rights, or does not have the necessary qualification to appear in the case, or does not have the character or representation he claims. 31On the other hand, a case is dismissible for lack of personality to sue upon proof that the plaintiff is not the real party in interest, hence grounded on failure to state a cause of action. 32 The term "lack of capacity to sue" should not be confused with the term "lack of personality to sue." While the former refers to a plaintiff's general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications of a party, the latter refers to the fact that the plaintiff is not the real party in interest. Correspondingly, the first can be a ground for a motion to dismiss based on the ground of lack of legal capacity to sue; 33 whereas the second can be used as a ground for a motion to dismiss based on the fact that the complaint, on the face thereof, evidently states no cause of action. 34 Applying the above discussion to the instant petition, the ground available for barring recourse to our courts by an unlicensed foreign corporation doing or transacting business in the Philippines should properly be "lack of capacity to sue," not "lack of personality to sue." Certainly, a corporation whose legal rights have been violated is undeniably such, if not the only, real party in interest to bring suit thereon although, for failure to comply with the licensing requirement, it is not capacitated to maintain any suit before our courts. Lastly, on this point, we reiterate this Court's rejection of the common procedural tactics of erring local companies which, when sued by unlicensed foreign corporations not engaged in business in the Philippines, invoke the latter's supposed lack of capacity to sue. The doctrine of lack of capacity to sue based on failure to first acquire a local license is based on considerations of public policy. It was never intended to favor nor insulate from suit unscrupulous establishments or nationals in case of breach of valid obligations or violation of legal rights of unsuspecting foreign firms or entities simply because they are not licensed to do business in the country. 35 II We now proceed to the main issue of the retroactive application to the present controversy of the ruling in 20th Century Fox Film Corporation vs. Court of Appeals, et al., promulgated on August 19, 1988, 36 that for the determination of probable cause to support the issuance of a search warrant in copyright infringement cases involving videograms, the production of the master tape for comparison with the allegedly pirate copies is necessary. Petitioners assert that the issuance of a search warrant is addressed to the discretion of the court subject to the determination of probable cause in accordance with the procedure prescribed therefore under Sections 3 and 4 of Rule 126. As of the time of the application for the search warrant in question, the controlling criterion for the finding of probable cause was that enunciated in Burgos vs. Chief of Staff 37 stating that: Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. According to petitioners, after complying with what the law then required, the lower court determined that there was probable cause for the issuance of a search warrant, and which determination in fact led to the issuance and service on December 14, 1987 of Search Warrant No. 87-053. It is further argued that any search warrant so issued in accordance with all applicable legal requirements is valid, for the lower court could not possibly have been expected to apply, as the basis for a finding of probable cause for the issuance of a search warrant in copyright infringement cases involving videograms, a pronouncement which was not existent at the time of such determination, on December 14, 1987, that is, the doctrine in the 20th Century Fox case that was promulgated only on August 19, 1988, or over eight months later. Private respondents predictably argue in support of the ruling of the Court of Appeals sustaining the quashal of the search warrant by the lower court on the strength of that 20th Century Fox ruling which, they claim, goes into the very essence of probable cause. At

Page 30 of 217 the time of the issuance of the search warrant involved here, although the 20th Century Fox case had not yet been decided, Section 2, Article III of the Constitution and Section 3, Rule 126 of the 1985 Rules on Criminal Procedure embodied the prevailing and governing law on the matter. The ruling in 20th Century Fox was merely an application of the law on probable cause. Hence, they posit that there was no law that was retrospectively applied, since the law had been there all along. To refrain from applying the 20th Century Fox ruling, which had supervened as a doctrine promulgated at the time of the resolution of private respondents' motion for reconsideration seeking the quashal of the search warrant for failure of the trial court to require presentation of the master tapes prior to the issuance of the search warrant, would have constituted grave abuse of discretion. 38 Respondent court upheld the retroactive application of the 20th Century Fox ruling by the trial court in resolving petitioners' motion for reconsideration in favor of the quashal of the search warrant, on this renovated thesis: And whether this doctrine should apply retroactively, it must be noted that in the 20th Century Fox case, the lower court quashed the earlier search warrant it issued. On certiorari, the Supreme Court affirmed the quashal on the ground among others that the master tapes or copyrighted films were not presented for comparison with the purchased evidence of the video tapes to determine whether the latter is an unauthorized reproduction of the former. If the lower court in the Century Fox case did not quash the warrant, it is Our view that the Supreme Court would have invalidated the warrant just the same considering the very strict requirement set by the Supreme Court for the determination of "probable cause" in copyright infringement cases as enunciated in this 20th Century Fox case. This is so because, as was stated by the Supreme Court in the said case, the master tapes and the pirated tapes must be presented for comparison to satisfy the requirement of "probable cause." So it goes back to the very existence of probable cause. . . . 39 Mindful as we are of the ramifications of the doctrine of stare decisis and the rudiments of fair play, it is our considered view that the 20th Century Fox ruling cannot be retroactively applied to the instant case to justify the quashal of Search Warrant No. 87-053. Herein petitioners' consistent position that the order of the lower court of September 5, 1988 denying therein defendants' motion to lift the order of search warrant was properly issued, there having been satisfactory compliance with the then prevailing standards under the law for determination of probable cause, is indeed well taken. The lower court could not possibly have expected more evidence from petitioners in their application for a search warrant other than what the law and jurisprudence, then existing and judicially accepted, required with respect to the finding of probable cause. Article 4 of the Civil Code provides that "(l)aws shall have no retroactive effect, unless the contrary is provided. Correlatively, Article 8 of the same Code declares that "(j)udicial decisions applying the laws or the Constitution shall form part of the legal system of the Philippines." Jurisprudence, in our system of government, cannot be considered as an independent source of law; it cannot create law. 40 While it is true that judicial decisions which apply or interpret the Constitution or the laws are part of the legal system of the Philippines, still they are not laws. Judicial decisions, though not laws, are nonetheless evidence of what the laws mean, and it is for this reason that they are part of the legal system of the Philippines. 41 Judicial decisions of the Supreme Court assume the same authority as the statute itself. 42 Interpreting the aforequoted correlated provisions of the Civil Code and in light of the above disquisition, this Court emphatically declared in Co vs. Court of Appeals, et al. 43 that the principle of prospectivity applies not only to original or amendatory statutes and administrative rulings and circulars, but also, and properly so, to judicial decisions. Our holding in the earlier case of People vs. Jabinal 44 echoes the rationale for this judicial declaration, viz.: Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws mean, and this is the reason why under Article 8 of the New Civil Code, "Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system." The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that the law was originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of the legal maxim "legis interpretatio legis vim obtinet" the interpretation placed upon the written law by a competent court has the force of law. . . . , but when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof . . . . (Emphasis supplied). This was forcefully reiterated in Spouses Benzonan vs. Court of Appeals, et al., 45 where the Court expounded: . . . . But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1961]). The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. . . . .

Page 31 of 217 The reasoning behind Senarillos vs. Hermosisima 46 that judicial interpretation of a statute constitutes part of the law as of the date it was originally passed, since the Court's construction merely establishes the contemporaneous legislative intent that the interpreted law carried into effect, is all too familiar. Such judicial doctrine does not amount to the passage of a new law but consists merely of a construction or interpretation of a pre-existing one, and that is precisely the situation obtaining in this case. It is consequently clear that a judicial interpretation becomes a part of the law as of the date that law was originally passed, subject only to the qualification that when a doctrine of this Court is overruled and a different view is adopted, and more so when there is a reversal thereof, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine and acted in good faith. 47 To hold otherwise would be to deprive the law of its quality of fairness and justice then, if there is no recognition of what had transpired prior to such adjudication. 48 There is merit in petitioners' impassioned and well-founded argumentation: The case of 20th Century Fox Film Corporation vs. Court of Appeals, et al., 164 SCRA 655 (August 19, 1988) (hereinafter 20th Century Fox) was inexistent in December of 1987 when Search Warrant 87-053 was issued by the lower court. Hence, it boggles the imagination how the lower court could be expected to apply the formulation of 20th Century Fox in finding probable cause when the formulation was yet non-existent. xxx xxx xxx In short, the lower court was convinced at that time after conducting searching examination questions of the applicant and his witnesses that "an offense had been committed and that the objects sought in connection with the offense (were) in the place sought to be searched" (Burgos v. Chief of Staff, et al., 133 SCRA 800). It is indisputable, therefore, that at the time of the application, or on December 14, 1987, the lower court did not commit any error nor did it fail to comply with any legal requirement for the valid issuance of search warrant. . . . (W)e believe that the lower court should be considered as having followed the requirements of the law in issuing Search Warrant No. 87-053. The search warrant is therefore valid and binding. It must be noted that nowhere is it found in the allegations of the Respondents that the lower court failed to apply the law as then interpreted in 1987. Hence, we find it absurd that it is (sic) should be seen otherwise, because it is simply impossible to have required the lower court to apply a formulation which will only be defined six months later. Furthermore, it is unjust and unfair to require compliance with legal and/or doctrinal requirements which are inexistent at the time they were supposed to have been complied with. xxx xxx xxx . . . If the lower court's reversal will be sustained, what encouragement can be given to courts and litigants to respect the law and rules if they can expect with reasonable certainty that upon the passage of a new rule, their conduct can still be open to question? This certainly breeds instability in our system of dispensing justice. For Petitioners who took special effort to redress their grievances and to protect their property rights by resorting to the remedies provided by the law, it is most unfair that fealty to the rules and procedures then obtaining would bear but fruits of injustice. 49 Withal, even the proposition that the prospectivity of judicial decisions imports application thereof not only to future cases but also to cases still ongoing or not yet final when the decision was promulgated, should not be countenanced in the jural sphere on account of its inevitably unsettling repercussions. More to the point, it is felt that the reasonableness of the added requirement in 20th Century Fox calling for the production of the master tapes of the copyrighted films for determination of probable cause in copyright infringement cases needs revisiting and clarification. It will be recalled that the 20th Century Fox case arose from search warrant proceedings in anticipation of the filing of a case for the unauthorized sale or renting out of copyrighted films in videotape format in violation of Presidential Decree No. 49. It revolved around the meaning of probable cause within the context of the constitutional provision against illegal searches and seizures, as applied to copyright infringement cases involving videotapes. Therein it was ruled that The presentation of master tapes of the copyrighted films from which the pirated films were allegedly copied, was necessary for the validity of search warrants against those who have in their possession the pirated films. The petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or copied tapes were necessarily reproduced from master tapes that it owns.

Page 32 of 217 The application for search warrants was directed against video tape outlets which allegedly were engaged in the unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49. The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the issuance of a search warrant. For a closer and more perspicuous appreciation of the factual antecedents of 20th Century Fox, the pertinent portions of the decision therein are quoted hereunder, to wit: In the instant case, the lower court lifted the three questioned search warrants against the private respondents on the ground that it acted on the application for the issuance of the said search warrants and granted it on the misrepresentations of applicant NBI and its witnesses that infringement of copyright or a piracy of a particular film have been committed. Thus the lower court stated in its questioned order dated January 2, 1986: According to the movant, all three witnesses during the proceedings in the application for the three search warrants testified of their own personal knowledge. Yet, Atty. Albino Reyes of the NBI stated that the counsel or representative of the Twentieth Century Fox Corporation will testify on the video cassettes that were pirated, so that he did not have personal knowledge of the alleged piracy. The witness Bacani also said that the video cassettes were pirated without stating the manner it was pirated and that it was Atty. Domingo that has knowledge of that fact. On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated tapes was from master tapes allegedly belonging to the Twentieth Century Fox, because, according to him it is of his personal knowledge. At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino Reyes testified that when the complaint for infringement was brought to the NBI, the master tapes of the allegedly pirated tapes were shown to him and he made comparisons of the tapes with those purchased by their man Bacani. Why the master tapes or at least the film reels of the allegedly pirated tapes were not shown to the Court during the application gives some misgivings as to the truth of that bare statement of the NBI agent on the witness stand. Again as the application and search proceedings is a prelude to the filing of criminal cases under PD 49, the copyright infringement law, and although what is required for the issuance thereof is merely the presence of probable cause, that probable cause must be satisfactory to the Court, for it is a time-honored precept that proceedings to put a man to task as an offender under our laws should be interpreted in strictissimi juris against the government and liberally in favor of the alleged offender. xxx xxx xxx This doctrine has never been overturned, and as a matter of fact it had been enshrined in the Bill of Rights in our 1973 Constitution. So that lacking in persuasive effect, the allegation that master tapes were viewed by the NBI and were compared to the purchased and seized video tapes from the respondents' establishments, it should be dismissed as not supported by competent evidence and for that matter the probable cause hovers in that grey debatable twilight zone between black and white resolvable in favor of respondents herein. But the glaring fact is that "Cocoon," the first video tape mentioned in the search warrant, was not even duly registered or copyrighted in the Philippines. (Annex C of Opposition p. 152 record.) So, that lacking in the requisite presentation to the Court of an alleged master tape for purposes of comparison with the purchased evidence of the video tapes allegedly pirated and those seized from respondents, there was no way to determine whether there really was piracy, or copying of the film of the complainant Twentieth Century Fox. xxx xxx xxx The lower court, therefore, lifted the three (3) questioned search warrants in the absence of probable cause that the private respondents violated P.D. 49. As found out by the court, the NBI agents who acted as witnesses did not have personal knowledge of the subject matter of their testimony which was the alleged commission of the offense by the private respondents. Only the petitioner's counsel who was also a witness during the application for the issuance of the search

Page 33 of 217 warrants stated that he had personal knowledge that the confiscated tapes owned by the private respondents were pirated tapes taken from master tapes belonging to the petitioner. However, the lower court did not give much credence to his testimony in view of the fact that the master tapes of the allegedly pirated tapes were not shown to the court during the application (Emphasis ours). The italicized passages readily expose the reason why the trial court therein required the presentation of the master tapes of the allegedly pirated films in order to convince itself of the existence of probable cause under the factual milieu peculiar to that case. In the case at bar, respondent appellate court itself observed: We feel that the rationale behind the aforequoted doctrine is that the pirated copies as well as the master tapes, unlike the other types of personal properties which may be seized, were available for presentation to the court at the time of the application for a search warrant to determine the existence of the linkage of the copyrighted films with the pirated ones. Thus, there is no reason not the present them (Emphasis supplied ). 50 In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of the copyrighted films for the validity of search warrants should at most be understood to merely serve as a guidepost in determining the existence of probable cause in copyright infringement caseswhere there is doubt as to the true nexus between the master tape and the pirated copies. An objective and careful reading of the decision in said case could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible requirement in all or similar copyright infringement cases. Judicial dicta should always be construed within the factual matrix of their parturition, otherwise a careless interpretation thereof could unfairly fault the writer with the vice of overstatement and the reader with the fallacy of undue generalization. In the case at bar, NBI Senior Agent Lauro C. Reyes who filed the application for search warrant with the lower court following a formal complaint lodged by petitioners, judging from his affidavit 51 and his deposition, 52 did testify on matters within his personal knowledge based on said complaint of petitioners as well as his own investigation and surveillance of the private respondents' video rental shop. Likewise, Atty. Rico V. Domingo, in his capacity as attorney-in-fact, stated in his affidavit 53 and further expounded in his deposition 54 that he personally knew of the fact that private respondents had never been authorized by his clients to reproduce, lease and possess for the purpose of selling any of the copyrighted films. Both testimonies of Agent Reyes and Atty. Domingo were corroborated by Rene C. Baltazar, a private researcher retained by Motion Pictures Association of America, Inc. (MPAA, Inc.), who was likewise presented as a witness during the search warrant proceedings. 55 The records clearly reflect that the testimonies of the abovenamed witnesses were straightforward and stemmed from matters within their personal knowledge. They displayed none of the ambivalence and uncertainty that the witnesses in the 20th Century Fox case exhibited. This categorical forthrightness in their statements, among others, was what initially and correctly convinced the trial court to make a finding of the existence of probable cause. There is no originality in the argument of private respondents against the validity of the search warrant, obviously borrowed from 20th Century Fox, that petitioners' witnesses NBI Agent Lauro C. Reyes, Atty. Rico V. Domingo and Rene C. Baltazar did not have personal knowledge of the subject matter of their respective testimonies and that said witnesses' claim that the video tapes were pirated, without stating the manner by which these were pirated, is a conclusion of fact without basis. 56 The difference, it must be pointed out, is that the records in the present case reveal that (1) there is no allegation of misrepresentation, much less a finding thereof by the lower court, on the part of petitioners' witnesses; (2) there is no denial on the part of private respondents that the tapes seized were illegitimate copies of the copyrighted ones not have they shown that they were given any authority by petitioners to copy, sell, lease, distribute or circulate, or at least, to offer for sale, lease, distribution or circulation the said video tapes; and (3) a discreet but extensive surveillance of the suspected area was undertaken by petitioners' witnesses sufficient to enable them to execute trustworthy affidavits and depositions regarding matters discovered in the course thereof and of which they have personal knowledge. It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in copyright infringement cases, the presentation of master tapes of the copyrighted films is always necessary to meet the requirement of probable cause and that, in the absence thereof, there can be no finding of probable cause for the issuance of a search warrant. It is true that such master tapes are object evidence, with the merit that in this class of evidence the ascertainment of the controverted fact is made through demonstrations involving the direct use of the senses of the presiding magistrate. 57 Such auxiliary procedure, however, does not rule out the use of testimonial or documentary evidence, depositions, admissions or other classes of evidence tending to prove the factum probandum, 58 especially where the production in court of object evidence would result in delay, inconvenience or expenses out of proportion to its evidentiary value. 59 Of course, as a general rule, constitutional and statutory provisions relating to search warrants prohibit their issuance except on a showing of probable cause, supported by oath or affirmation. These provisions prevent the issuance of warrants on loose, vague, or doubtful bases of fact, and emphasize the purpose to protect against all general searches. 60 Indeed, Article III of our Constitution mandates in Sec. 2 thereof that no search warrant shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized; and Sec. 3 thereof provides that any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding. These constitutional strictures are implemented by the following provisions of Rule 126 of the Rules of Court:

Page 34 of 217 Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the existence of facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. The constitutional and statutory provisions of various jurisdictions requiring a showing of probable cause before a search warrant can be issued are mandatory and must be complied with, and such a showing has been held to be an unqualified condition precedent to the issuance of a warrant. A search warrant not based on probable cause is a nullity, or is void, and the issuance thereof is, in legal contemplation, arbitrary. 61 It behooves us, then, to review the concept of probable cause, firstly, from representative holdings in the American jurisdiction from which we patterned our doctrines on the matter. Although the term "probable cause" has been said to have a well-defined meaning in the law, the term is exceedingly difficult to define, in this case, with any degree of precision; indeed, no definition of it which would justify the issuance of a search warrant can be formulated which would cover every state of facts which might arise, and no formula or standard, or hard and fast rule, may be laid down which may be applied to the facts of every situation. 62 As to what acts constitute probable cause seem incapable of definition. 63There is, of necessity, no exact test. 64 At best, the term "probable cause" has been understood to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; 65 or the existence of such facts and circumstances as would excite an honest belief in a reasonable mind acting on all the facts and circumstances within the knowledge of the magistrate that the charge made by the applicant for the warrant is true. 66 Probable cause does not mean actual and positive cause, nor does it import absolute certainty. The determination of the existence of probable cause is not concerned with the question of whether the offense charged has been or is being committed in fact, or whether the accused is guilty or innocent, but only whether the affiant has reasonable grounds for his belief. 67 The requirement is less than certainty or proof , but more than suspicion or possibility. 68 In Philippine jurisprudence, probable cause has been uniformly defined as such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. 69 It being the duty of the issuing officer to issue, or refuse to issue, the warrant as soon as practicable after the application therefor is filed, 70 the facts warranting the conclusion of probable cause must be assessed at the time of such judicial determination by necessarily using legal standards then set forth in law and jurisprudence, and not those that have yet to be crafted thereafter . As already stated, the definition of probable cause enunciated in Burgos, Sr. vs. Chief of Staff, et al.,supra, vis-a-vis the provisions of Sections 3 and 4 of Rule 126, were the prevailing and controlling legal standards, as they continue to be, by which a finding of probable cause is tested. Since the propriety of the issuance of a search warrant is to be determined at the time of the application therefor, which in turn must not be too remote in time from the occurrence of the offense alleged to have been committed, the issuing judge, in determining the existence of probable cause, can and should logically look to the touchstones in the laws theretofore enacted and the decisions already promulgated at the time, and not to those which had not yet even been conceived or formulated. It is worth noting that neither the Constitution nor the Rules of Court attempt to define probable cause, obviously for the purpose of leaving such matter to the court's discretion within the particular facts of each case. Although the Constitution prohibits the issuance of a search warrant in the absence of probable cause, such constitutional inhibition does not command the legislature to establish a definition or formula for determining what shall constitute probable cause. 71 Thus, Congress, despite its broad authority to fashion standards of reasonableness for searches and seizures, 72 does not venture to make such a definition or standard formulation of probable cause, nor categorize what facts and circumstances make up the same, much less limit the determination thereof to and within the circumscription of a particular class of evidence, all in deference to judicial discretion and probity. 73 Accordingly, to restrict the exercise of discretion by a judge by adding a particular requirement (the presentation of master tapes, as intimated by 20th Century Fox) not provided nor implied in the law for a finding of probable cause is beyond the realm of judicial competence or statesmanship. It serves no purpose but to stultify and constrict the judicious exercise of a court's prerogatives and to denigrate the judicial duty of determining the existence of probable cause to a mere ministerial or mechanical function. There is, to repeat, no law or rule which requires that the existence of probable cause is or should be determined solely by a specific kind of evidence. Surely, this could not have been contemplated by the framers of the Constitution, and we do not believe that the Court intended the statement in 20th Century Fox regarding master tapes as the dictum for all seasons and reasons in infringement cases.

Page 35 of 217 Turning now to the case at bar, it can be gleaned from the records that the lower court followed the prescribed procedure for the issuance of a search warrant: (1) the examination under oath or affirmation of the complainant and his witnesses, with them particularly describing the place to be searched and the things to be seized; (2) an examination personally conducted by the judge in the form of searching questions and answers, in writing and under oath of the complainant and witnesses on facts personally known to them; and, (3) the taking of sworn statements, together with the affidavits submitted, which were duly attached to the records. Thereafter, the court a quo made the following factual findings leading to the issuance of the search warrant now subject of this controversy: In the instant case, the following facts have been established: (1) copyrighted video tapes bearing titles enumerated in Search Warrant No. 87-053 were being sold, leased, distributed or circulated, or offered for sale, lease, distribution, or transferred or caused to be transferred by defendants at their video outlets, without the written consent of the private complainants or their assignee; (2) recovered or confiscated from defendants' possession were video tapes containing copyrighted motion picture films without the authority of the complainant; (3) the video tapes originated from spurious or unauthorized persons; and (4) said video tapes were exact reproductions of the films listed in the search warrant whose copyrights or distribution rights were owned by complainants. The basis of these facts are the affidavits and depositions of NBI Senior Agent Lauro C. Reyes, Atty. Rico V. Domingo, and Rene C. Baltazar. Motion Pictures Association of America, Inc. (MPAA) thru their counsel, Atty. Rico V. Domingo, filed a complaint with the National Bureau of Investigation against certain video establishments one of which is defendant, for violation of PD No. 49 as amended by PD No. 1988. Atty. Lauro C. Reyes led a team to conduct discreet surveillance operations on said video establishments. Per information earlier gathered by Atty. Domingo, defendants were engaged in the illegal sale, rental, distribution, circulation or public exhibition of copyrighted films of MPAA without its written authority or its members. Knowing that defendant Sunshine Home Video and its proprietor, Mr. Danilo Pelindario, were not authorized by MPAA to reproduce, lease, and possess for the purpose of selling any of its copyrighted motion pictures, instructed his researcher, Mr. Rene Baltazar to rent two video cassettes from said defendants on October 21, 1987. Rene C. Baltazar proceeded to Sunshine Home Video and rented tapes containing Little Shop of Horror. He was issued rental slip No. 26362 dated October 21, 1987 for P10.00 with a deposit of P100.00. Again, on December 11, 1987, the returned to Sunshine Home Video and rented Robocop with rental slip No. 25271 also for P10.00: On the basis of the complaint of MPAA thru counsel, Atty. Lauro C. Reyes personally went to Sunshine Home Video at No. 6 Mayfair Center, Magallanes Commercial Center, Makati. His last visit was on December 7, 1987. There, he found the video outlet renting, leasing, distributing video cassette tapes whose titles were copyrighted and without the authority of MPAA. Given these facts, a probable cause exists. . . . 74 The lower court subsequently executed a volte-face, despite its prior detailed and substantiated findings, by stating in its order of November 22, 1988 denying petitioners' motion for reconsideration and quashing the search warrant that . . . The two (2) cases have a common factual milieu; both involve alleged pirated copyrighted films of private complainants which were found in the possession or control of the defendants. Hence, the necessity of the presentation of the master tapes from which the pirated films were allegedly copied is necessary in the instant case, to establish the existence of probable cause. 75 Being based solely on an unjustifiable and improper retroactive application of the master tape requirement generated by 20th Century Fox upon a factual situation completely different from that in the case at bar, and without anything more, this later order clearly defies elemental fair play and is a gross reversible error. In fact, this observation of the Court in La Chemise Lacoste, S.A. vs. Fernandez, et al., supra, may just as easily apply to the present case: A review of the grounds invoked . . . in his motion to quash the search warrants reveals the fact that they are not appropriate for quashing a warrant. They are matters of defense which should be ventilated during the trial on the merits of the case. . . . As correctly pointed out by petitioners, a blind espousal of the requisite of presentation of the master tapes in copyright infringement cases, as the prime determinant of probable cause, is too exacting and impracticable a requirement to be complied with in a search warrant application which, it must not be overlooked, is only an ancillary proceeding. Further, on realistic considerations, a strict application of said requirement militates against the elements of secrecy and speed which underlie covert investigative and surveillance operations in police enforcement campaigns against all forms of criminality, considering that the master tapes of a motion picture required to be presented before the court consists of several reels contained in circular steel casings which, because of their bulk, will definitely draw attention, unlike diminutive objects like video tapes which can be easily concealed. 76 With hundreds of titles being pirated, this onerous and tedious imposition would be multiplied a hundredfold by judicial fiat, discouraging and preventing legal recourses in foreign jurisdictions. Given the present international awareness and furor over violations in large scale of intellectual property rights, calling for transnational sanctions, it bears calling to mind the Court's admonition also in La Chemise Lacoste, supra, that

Page 36 of 217 . . . . Judges all over the country are well advised to remember that court processes should not be used as instruments to, unwittingly or otherwise, aid counterfeiters and intellectual pirates, tie the hands of the law as it seeks to protect the Filipino consuming public and frustrate executive and administrative implementation of solemn commitments pursuant to international conventions and treaties. III The amendment to Section 56 of Presidential Decree No. 49 by Presidential Decree No. 1987, 77 which should here be publicized judicially, brought about the revision of its penalty structure and enumerated additional acts considered violative of said decree on intellectual property, namely, (1) directly or indirectly transferring or causing to be transferred any sound recording or motion picture or other audio-visual works so recorded with intent to sell, lease, publicly exhibit or cause to be sold, leased or publicly exhibited, or to use or cause to be used for profit such articles on which sounds, motion pictures, or other audio-visual works are so transferred without the written consent of the owner or his assignee; (2) selling, leasing, distributing, circulating, publicly exhibiting, or offering for sale, lease, distribution, or possessing for the purpose of sale, lease, distribution, circulation or public exhibition any of the abovementioned articles, without the written consent of the owner or his assignee; and, (3) directly or indirectly offering or making available for a fee, rental, or any other form of compensation any equipment, machinery, paraphernalia or any material with the knowledge that such equipment, machinery, paraphernalia or material will be used by another to reproduce, without the consent of the owner, any phonograph record, disc, wire, tape, film or other article on which sounds, motion pictures or other audio-visual recordings may be transferred, and which provide distinct bases for criminal prosecution, being crimes independently punishable under Presidential Decree No. 49, as amended, aside from the act of infringing or aiding or abetting such infringement under Section 29. The trial court's finding that private respondents committed acts in blatant transgression of Presidential Decree No. 49 all the more bolsters its findings of probable cause, which determination can be reached even in the absence of master tapes by the judge in the exercise of sound discretion. The executive concern and resolve expressed in the foregoing amendments to the decree for the protection of intellectual property rights should be matched by corresponding judicial vigilance and activism, instead of the apathy of submitting to technicalities in the face of ample evidence of guilt. The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. 78 A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know what works he was indirectly copying, or did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy. 79 The question of whether there has been an actionable infringement of a literary, musical, or artistic work in motion pictures, radio or television being one of fact, 80 it should properly be determined during the trial. That is the stage calling for conclusive or preponderating evidence, and not the summary proceeding for the issuance of a search warrant wherein both lower courts erroneously require the master tapes. In disregarding private respondent's argument that Search Warrant No. 87-053 is a general warrant, the lower court observed that "it was worded in a manner that the enumerated seizable items bear direct relation to the offense of violation of Sec. 56 of PD 49 as amended. It authorized only the seizur(e) of articles used or intended to be used in the unlawful sale, lease and other unconcerted acts in violation of PD 49 as amended. . . . 81 On this point, Bache and Co., (Phil.), Inc., et al. vs. Ruiz, et al., 82 instructs and enlightens: A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio, 57 Phil. 384); or when the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec 2, Rule 126, Revised Rules of Court). . . . If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. . .. On private respondents' averment that the search warrant was made applicable to more than one specific offense on the ground that there are as many offenses of infringement as there are rights protected and, therefore, to issue one search warrant for all the movie titles allegedly pirated violates the rule that a search warrant must be issued only in connection with one specific offense, the lower court said:

Page 37 of 217 . . . . As the face of the search warrant itself indicates, it was issued for violation of Section 56, PD 49 as amended only. The specifications therein (in Annex A) merely refer to the titles of the copyrighted motion pictures/films belonging to private complainants which defendants were in control/possession for sale, lease, distribution or public exhibition in contravention of Sec. 56, PD 49 as amended. 83 That there were several counts of the offense of copyright infringement and the search warrant uncovered several contraband items in the form of pirated video tapes is not to be confused with the number of offenses charged. The search warrant herein issued does not violate the one-specific-offense rule. It is pointless for private respondents to insist on compliance with the registration and deposit requirements under Presidential Decree No. 49 as prerequisites for invoking the court's protective mantle in copyright infringement cases. As explained by the court below: Defendants-movants contend that PD 49 as amended covers only producers who have complied with the requirements of deposit and notice (in other words registration) under Sections 49 and 50 thereof. Absent such registration, as in this case, there was no right created, hence, no infringement under PD 49 as amended. This is not well-taken. As correctly pointed out by private complainants-oppositors, the Department of Justice has resolved this legal question as far back as December 12, 1978 in its Opinion No. 191 of the then Secretary of Justice Vicente Abad Santos which stated that Sections 26 and 50 do not apply to cinematographic works and PD No. 49 "had done away with the registration and deposit of cinematographic works" and that "even without prior registration and deposit of a work which may be entitled to protection under the Decree, the creator can file action for infringement of its rights". He cannot demand, however, payment of damages arising from infringement. The same opinion stressed that "the requirements of registration and deposit are thus retained under the Decree, not as conditions for the acquisition of copyright and other rights, but as prerequisites to a suit for damages". The statutory interpretation of the Executive Branch being correct, is entitled (to) weight and respect. xxx xxx xxx Defendants-movants maintain that complainant and his witnesses led the Court to believe that a crime existed when in fact there was none. This is wrong. As earlier discussed, PD 49 as amended, does not require registration and deposit for a creator to be able to file an action for infringement of his rights. These conditions are merely pre-requisites to an action for damages. So, as long as the proscribed acts are shown to exist, an action for infringement may be initiated. 84 Accordingly, the certifications 85 from the Copyright Section of the National Library, presented as evidence by private respondents to show non-registration of some of the films of petitioners, assume no evidentiary weight or significance whatsoever. Furthermore, a closer review of Presidential Decree No. 49 reveals that even with respect to works which are required under Section 26 thereof to be registered and with copies to deposited with the National Library, such as books, including composite and cyclopedic works, manuscripts, directories and gazetteers; and periodicals, including pamphlets and newspapers; lectures, sermons, addresses, dissertations prepared for oral delivery; and letters, the failure to comply with said requirements does not deprive the copyright owner of the right to sue for infringement. Such non-compliance merely limits the remedies available to him and subjects him to the corresponding sanction. The reason for this is expressed in Section 2 of the decree which prefaces its enumeration of copyrightable works with the explicit statement that "the rights granted under this Decree shall, from the moment of creation, subsist with respect to any of the following classes of works." This means that under the present state of the law, the copyright for a work is acquired by an intellectual creator from the moment of creation even in the absence of registration and deposit. As has been authoritatively clarified: The registration and deposit of two complete copies or reproductions of the work with the National Library within three weeks after the first public dissemination or performance of the work, as provided for in Section 26 (P.D. No. 49, as amended), is not for the purpose of securing a copyright of the work, but rather to avoid the penalty for non-compliance of the deposit of said two copies and in order to recover damages in an infringement suit. 86 One distressing observation. This case has been fought on the basis of, and its resolution long delayed by resort to, technicalities to a virtually abusive extent by private respondents, without so much as an attempt to adduce any credible evidence showing that they conduct their business legitimately and fairly. The fact that private respondents could not show proof of their authority or that there was consent from the copyright owners for them to sell, lease, distribute or circulate petitioners' copyrighted films immeasurably bolsters the lower court's initial finding of probable cause. That private respondents are licensed by the Videogram Regulatory Board does not insulate them from criminal and civil liability for their unlawful business practices. What is more deplorable is that the reprehensible acts of some unscrupulous characters have stigmatized the Philippines with an unsavory reputation as a hub for intellectual piracy in this part of the globe, formerly in the records of the General Agreement on Tariffs and Trade and, now, of the World Trade Organization. Such acts must not be glossed over but should be denounced and repressed lest the Philippines become an international pariah in the global intellectual community.

Page 38 of 217 WHEREFORE, the assailed judgment and resolution of respondent Court of Appeals, and necessarily inclusive of the order of the lower court dated November 22, 1988, are hereby REVERSED and SET ASIDE. The order of the court a quo of September 5, 1988 upholding the validity of Search Warrant No. 87-053 is hereby REINSTATED, and said court is DIRECTED to take and expeditiously proceed with such appropriate proceedings as may be called for in this case. Treble costs are further assessed against private respondents. SO ORDERED.

STONEHILL VS. DIOKNO

G.R. No. L-19550 June 19, 1967
Upon application of the officers of the government named on the margin1 hereinafter referred to as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the corporations of which they were officers,5 directed to the any peace officer, to search the persons above-named and/or the premises of their offices, warehouses and/or residences, and to seize and take possession of the following personal property to wit: Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers). as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be used as the means of committing the offense," which is described in the applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code." Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of Court because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of the present case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their agents and /or representatives from using the effects seized as aforementioned or any copies thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants and declaring the same null and void, and commanding the respondents, their agents or representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cash moneys seized or confiscated under the search warrants in question. In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures. On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things seized from the offices of the corporations above mentioned are concerned; but, the injunction was maintained as regards the papers, documents and things found and seized in the residences of petitioners herein.7 Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split into two (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b) those found and seized in the residences of petitioners herein. As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold therein may be.8 Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers in evidence belongsexclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity. 11 Indeed, it has been held: . . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nor did it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of or any one

Page 39 of 217 were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its violation, if any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the personal defendants but embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.) With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in evidence against petitioners herein. In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence against petitioners herein.1wph1.t Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that accordingly, the seizures effected upon the authority there of are null and void. In this connection, the Constitution 13 provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized. None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specificoffense had been alleged in said applications. The averments thereof with respect to the offense committed wereabstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," as alleged in the aforementioned applications without reference to any determinate provision of said laws or To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even though by legal means. Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one specific offense." The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein made of the effects to be searched for and seized, to wit: Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights that the things to be seized be particularly described as well as tending to defeat its major objective: the elimination of general warrants.

Page 40 of 217 Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if the searches and seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American common law rule, that the criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer, against the party who procured the issuance of the search warrant and against those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may be provided by other laws. However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. In the language of Judge Learned Hand: As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.18 In fact, over thirty (30) years before, the Federal Supreme Court had already declared: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.19 This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):
20

After reviewing

. . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State. Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be "a form of words," valueless and underserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to permit this Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that the Court held in Wolf that the amendment was applicable to the States through the Due Process Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches state or federal it was logically and constitutionally necessarily that the exclusion doctrine an essential part of the right to privacy be also insisted upon as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new constitutional Right by Wolf could not tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it" . . . . The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by its Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.)

Page 41 of 217 Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable cause. Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks the fact that violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minority usually but, understandably finds itself in prosecuting agents of the majority, one must not lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the pardoning power of the party for whose benefit the illegality had been committed. In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to include personal belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts of federal courts of the United States. 22 We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein. Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future. We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of herein petitioners is hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29) places, offices and other premises enumerated in the same Resolution, without special pronouncement as to costs. It is so ordered. Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. CASTRO, J., concurring and dissenting: From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations of the Court on this case, I gather the following distinct conclusions: 1. All the search warrants served by the National Bureau of Investigation in this case are general warrants and are therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of the Constitution; 2. All the searches and seizures conducted under the authority of the said search warrants were consequently illegal; 3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is declared, abandoned; 4. The search warrants served at the three residences of the petitioners are expressly declared null and void the searches and seizures therein made are expressly declared illegal; and the writ of preliminary injunction heretofore issued against the use of the documents, papers and effect seized in the said residences is made permanent; and

Page 42 of 217 5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legal standing to move for the suppression of the documents, papers and effects seized in the places other than the three residences adverted to above, the opinion written by the Chief Justice refrains from expresslydeclaring as null and void the such warrants served at such other places and as illegal the searches and seizures made therein, and leaves "the matter open for determination in appropriate cases in the future." It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered 5) with which I am not in accord. I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants served at places other than the three residences, and the illegibility of the searches and seizures conducted under the authority thereof. In my view even the exacerbating passions and prejudices inordinately generated by the environmental political and moral developments of this case should not deter this Court from forthrightly laying down the law not only for this case but as well for future cases and future generations. All the search warrants, without exception, in this case are admittedly general, blanket and roving warrants and are therefore admittedly and indisputably outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of the papers, things and effects seized from places other than their residences, to my mind, cannot in any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners possess legal standing the said warrants are void and remain void, and the searches and seizures were illegal and remain illegal. No inference can be drawn from the words of the Constitution that "legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the lawfulness or illegality of a search or seizure. On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the petitioners have the requisite legal standing to move for the suppression and return of the documents, papers and effects that were seized from places other than their family residences. Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to the United States Constitution. In the many years of judicial construction and interpretation of the said constitutional provision, our courts have invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of Appeals. The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers and effects which are the fruits of an unlawful search and seizure, may be summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b) ownership and/or control or possession actual or constructive of premises searched gives "standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn application for search warrant are "primarily" directed solely and exclusively against the "aggrieved person," gives "standing." An examination of the search warrants in this case will readily show that, excepting three, all were directed against the petitioners personally. In some of them, the petitioners were named personally, followed by the designation, "the President and/or General Manager" of the particular corporation. The three warrants excepted named three corporate defendants. But the "office/house/warehouse/premises" mentioned in the said three warrants were also the same "office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other search warrants directed against the petitioners and/or "the President and/or General Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The searches and seizures were to be made, and were actually made, in the "office/house/warehouse/premises" owned by or under the control of the petitioners. Ownership of matters seized gives "standing." Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives them standing as persons aggrieved by an unlawful search and seizure regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the defendant). In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under the constitutional provision against unlawful searches and seizures, a person places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile: Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment protection. What the Fourth Amendment protects is the security a man relies upon when heplaces himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile . There he is protected from unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other cases which have come to this

Page 43 of 217 Court over the years have involved a myriad of differing factual contexts in which the protections of the Fourth Amendment have been appropriately invoked. No doubt, the future will bring countless others. By nothing we say here do we either foresee or foreclose factual situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied). Control of premises searched gives "standing." Independent of ownership or other personal interest in the records and documents seized, the petitioners have standing to move for return and suppression by virtue of their proprietary or leasehold interest in many of the premises searched. These proprietary and leasehold interests have been sufficiently set forth in their motion for reconsideration and need not be recounted here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate offices (IBMC, USTC); had made improvements or furnished such offices; or had paid for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually, or through their respective spouses, owned the controlling stock of the corporations involved. The petitioners' proprietary interest in most, if not all, of the premises searched therefore independently gives them standing to move for the return and suppression of the books, papers and affects seized therefrom. In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the searched premises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly technical standard of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266): We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessarily and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of those distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be determinative in fashioning procedures ultimately referable to constitutional safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961). It has never been held that a person with requisite interest in the premises searched must own the property seized in order to have standing in a motion to return and suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose apartment the corporate records were seized successfully moved for their return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully moved for the return and suppression is to him of both personal and corporate documents seized from his home during the course of an illegal search: The lawful possession by Antonelli of documents and property, "either his own or the corporation's was entitled to protection against unreasonable search and seizure. Under the circumstances in the case at bar, the search and seizure were unreasonable and unlawful. The motion for the return of seized article and the suppression of the evidence so obtained should be granted. (Emphasis supplied). Time was when only a person who had property in interest in either the place searched or the articles seize had the necessary standing to invoke the protection of the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.S. Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the apartment unlawfully searched but the Court nonetheless declared that the exclusionary rule protected him as well. The concept of "person aggrieved by an unlawful search and seizure" was enlarged to include "anyone legitimately on premise where the search occurs." Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held that the defendant organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against him to demand the return and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude that the defendant had standing on two independent grounds: First he had a sufficient interest in the property seized, and second he had an adequate interest in the premises searched (just like in the case at bar). A postal inspector had unlawfully searched the corporation' premises and had seized most of the corporation's book and records. Looking to Jones, the court observed: Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful search and seizure." It tells us that appellant should not have been precluded from objecting to the Postal Inspector's search and seizure of the corporation's books and records merely because the appellant did not show ownership or possession of the books and records or a substantial possessory interest in the invade premises . . . (Henzel vs. United States, 296 F. 2d at 651). . Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officers seized two notebooks from a desk in the defendant's place of employment; the defendant did not claim ownership of either; he asserted that several employees (including himself) used the notebooks. The Court held that the employee had a protected interest and that there

Page 44 of 217 also was an invasion of privacy. Both Henzel and Villanoconsidered also the fact that the search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vs. United States, 310 F. 2d at 683. In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his files. The Government contended that the petitioner had no standing because the books and papers were physically in the possession of the custodian, and because the subpoena was directed against the custodian. The court rejected the contention, holding that Schwimmer legally had such possession, control and unrelinquished personal rights in the books and papers as not to enable the question of unreasonable search and seizure to be escaped through the mere procedural device of compelling a third-party naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956). Aggrieved person doctrine where the search warrant s primarily directed against said person gives "standing." The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191 (1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management." The papers turned out to be private, personal and business papers together with corporate books and records of certain unnamed corporations in which Birrell did not even claim ownership. (All of these type records were seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the court which held that even though Birrell did not own the premises where the records were stored, he had "standing" to move for the return of all the papers and properties seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that It is overwhelmingly established that the searches here in question were directed solely and exclusively against Birrell. The only person suggested in the papers as having violated the law was Birrell. The first search warrant described the records as having been used "in committing a violation of Title 18, United States Code, Section 1341, by the use of the mails by one Lowell M. Birrell, . . ." The second search warrant was captioned: "United States of America vs. Lowell M. Birrell. (p. 198) Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was the rule even before Jones. (p. 199) If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn, it matters not whether he had any interest in the premises searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951). The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell, many personal and corporate papers were seized from premises not petitioners' family residences; as in Birrell,the searches were "PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection with the premises raided is much closer than in Birrell. Thus, the petitioners have full standing to move for the quashing of all the warrants regardless whether these were directed against residences in the narrow sense of the word, as long as the documents were personal papers of the petitioners or (to the extent that they were corporate papers) were held by them in a personal capacity or under their personal control. Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners all personaland private papers and effects seized, no matter where these were seized, whether from their residences or corporate offices or any other place or places. The uncontradicted sworn statements of the petitioners in their, various pleadings submitted to this Court indisputably show that amongst the things seized from the corporate offices and other places were personal and private papers and effects belonging to the petitioners. If there should be any categorization of the documents, papers and things which where the objects of the unlawful searches and seizures, I submit that the grouping should be: (a) personal or private papers of the petitioners were they were unlawfully seized, be it their family residences offices, warehouses and/or premises owned and/or possessed (actually or constructively) by them as shown in all the search and in the sworn applications filed in securing the void search warrants and (b) purely corporate papers belonging to corporations. Under such categorization or grouping, the determination of which unlawfully seized papers, documents and things arepersonal/private of the petitioners or purely corporate papers will have to be left to the lower courts which issued the void search warrants in ultimately effecting the suppression and/or return of the said documents. And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to move for the suppression of purely corporate papers as "President and/or General Manager" of the corporations involved as specifically mentioned in the void search warrants.

Page 45 of 217 Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions, the great clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of their protection from cases not criminal in origin or nature.

CENTRAL BANK OF THE PHILS. VS. MORFE

G.R. No. L-20119 June 30, 1967
This is an original action for certiorari, prohibition and injunction, with preliminary injunction, against an order of the Court of First Instance of Manila, the dispositive part of which reads: WHEREFORE, upon the petitioner filing an injunction bond in the amount of P3,000.00, let a writ of preliminary preventive and/or mandatory injunction issue, restraining the respondents, their agents or representatives, from further searching the premises and properties and from taking custody of the various documents and papers of the petitioner corporation, whether in its main office or in any of its branches; and ordering the respondent Central Bank and/or its co-respondents to return to the petitioner within five (5) days from service on respondents of the writ of preventive and/or mandatory injunction, all the books, documents, and papers so far seized from the petitioner pursuant to the aforesaid search warrant.1wph1.t Upon the filing of the petition herein and of the requisite bond, we issued, on August 14, 1962, a writ of preliminary injunction restraining and prohibiting respondents herein from enforcing the order above quoted. The main respondent in this case, the First Mutual Savings and Loan Organization, Inc. hereinafter referred to as the Organization is a registered non-stock corporation, the main purpose of which, according to its Articles of Incorporation, dated February 14, 1961, is "to encourage . . . and implement savings and thrift among its members, and to extend financial assistance in the form of loans," to them. The Organization has three (3) classes of "members,"1 namely: (a) founder members who originally joined the organization and have signed the pre-incorporation papers with the exclusive right to vote and be voted for ; (b) participating members with"no right to vote or be voted for" to which category all other members belong; except (c) honorary members, so made by the board of trustees, "at the exclusive discretion" thereof due to "assistance, honor, prestige or help extended in the propagation" of the objectives of the Organization without any pecuniary expenses on the part of said honorary members. On February 14, 1962, the legal department of the Central Bank of the Philippines hereinafter referred to as the Bank rendered an opinion to the effect that the Organization and others of similar nature are banking institutions, falling within the purview of the Central Bank Act.2 Hence, on April 1 and 3, 1963, the Bank caused to be published in the newspapers the following: ANNOUNCEMENT To correct any wrong impression which recent newspaper reports on "savings and loan associations" may have created in the minds of the public and other interested parties, as well as to answer numerous inquiries from the public, the Central Bank of the Philippines wishes to announce that all "savings and loan associations" now in operation and other organizations using different corporate names, but engaged in operations similar in nature to said "associations" HAVE NEVER BEEN AUTHORIZED BY THE MONETARY BOARD OF THE CENTRAL BANK OF THE PHILIPPINES TO ACCEPT DEPOSIT OF FUNDS FROM THE PUBLIC NOR TO ENGAGE IN THE BANKING BUSINESS NOR TO PERFORM ANY BANKING ACTIVITY OR FUNCTION IN THE PHILIPPINES. Such institutions violate Section. 2 of the General Banking Act, Republic Act No. 337, should they engage in the "lending of funds obtained from the public through the receipts of deposits or the sale of bonds, securities or obligations of any kind" without authority from the Monetary Board. Their activities and operations are not supervised by the Superintendent of Banks and persons dealing with such institutions do so at their risk. CENTRAL BANK OF THE PHILIPPINES Moreover, on April 23, 1962, the Governor of the Bank directed the coordination of "the investigation and gathering of evidence on the activities of the savings and loan associations which are operating contrary to law." Soon thereafter, or on May 18, 1962, a member of the intelligence division of the Bank filed with the Municipal Court of Manila a verified application for a search warrant against the Organization, alleging that "after close observation and personal investigation, the premises at No. 2745 Rizal Avenue, Manila" in which the offices of the Organization were housed "are being used unlawfully," because said Organization is illegally engaged in banking activities, "by receiving deposits of money for deposit, disbursement, safekeeping or otherwise or transacts the business of a savings and mortgage bank and/or building and loan association . . . without having first complied with the provisions of Republic Act No. 337" and that the articles, papers, or effects enumerated in a list attached to said application, as Annex A thereof.3 are kept in said premises, and "being used or intended to be used in the commission of a felony, to wit: violation of Sections 2 and 6 of Republic Act No. 337."4 Said articles, papers or effects are described in the aforementioned Annex A, as follows: I. BOOKS OF ORIGINAL ENTRY (1) General Journal

Page 46 of 217 (2) Columnar Journal or Cash Book (a) Cash Receipts Journal or Cash Receipt Book (b) Cash Disbursements Journal or Cash Disbursement Book II. BOOKS OF FINAL ENTRY (1) General Ledger (2) Individual Deposits and Loans Ledgers (3) Other Subsidiary Ledgers III. OTHER ACCOUNTING RECORDS (1) Application for Membership (2) Signature Card (3) Deposit Slip (4) Passbook Slip (5) Withdrawal Slip (6) Tellers Daily Deposit Report (7) Application for Loan Credit Statement (8) Credit Report (9) Solicitor's Report (10) Promissory Note (11) I n d o r s e m e n t (12) Co-makers' Statements (13) Chattel Mortgage Contracts (14) Real Estate Mortgage Contracts (15) Trial Balance (16) Minutes Book Board of Directors IV. FINANCIAL STATEMENTS (1) Income and Expenses Statements (2) Balance Sheet or Statement of Assets and Liabilities V. OTHERS (1) Articles of Incorporation

Page 47 of 217 (2) By-Laws (3) Prospectus, Brochures Etc. (4) And other documents and articles which are being used or intended to be used in unauthorized banking activities and operations contrary to law. Upon the filing of said application, on May 18, 1962, Hon. Roman Cancino, as Judge of the said municipal court, issued the warrant above referred to,5 commanding the search of the aforesaid premises at No. 2745 Rizal Avenue, Manila, and the seizure of the foregoing articles, there being "good and sufficient reasons to believe" upon examination, under oath, of a detective of the Manila Police Department and said intelligence officer of the Bank that the Organization has under its control, in the address given, the aforementioned articles, which are the subject of the offense adverted to above or intended to be used as means for the commission of said off offense. Forthwith, or on the same date, the Organization commenced Civil Case No. 50409 of the Court of First Instance of Manila, an original action for "certiorari, prohibition, with writ of preliminary injunction and/or writ of preliminary mandatory injunction," against said municipal court, the Sheriff of Manila, the Manila Police Department, and the Bank, to annul the aforementioned search warrant, upon the ground that, in issuing the same, the municipal court had acted "with grave abuse of discretion, without jurisdiction and/or in excess of jurisdiction" because: (a) "said search warrant is a roving commission general in its terms . . .;" (b) "the use of the word 'and others' in the search warrant . . . permits the unreasonable search and seizure of documents which have no relation whatsoever to any specific criminal act . . .;" and (c) "no court in the Philippines has any jurisdiction to try a criminal case against a corporation . . ." The Organization, likewise, prayed that, pending hearing of the case on the merits, a writ of preliminary injunction be issued ex parte restraining the aforementioned search and seizure, or, in the alternative, if the acts complained of have been partially performed, that a writ of preliminary mandatory injunction be forthwith issued ex parte, ordering the preservation of the status quo of the parties, as well as the immediate return to the Organization of the documents and papers so far seized under, the search warrant in question. After due hearing, on the petition for said injunction, respondent, Hon. Jesus P. Morfe, Judge, who presided over the branch of the Court of First Instance of Manila to which said Case No. 50409 had been assigned, issued, on July 2, 1962, the order complained of. Within the period stated in said order, the Bank moved for a reconsideration thereof, which was denied on August 7, 1962. Accordingly, the Bank commenced, in the Supreme Court, the present action, against Judge Morfe and the Organization, alleging that respondent Judge had acted with grave abuse of discretion and in excess of his jurisdiction in issuing the order in question. At the outset, it should be noted that the action taken by the Bank, in causing the aforementioned search to be made and the articles above listed to be seized, was predicated upon the theory that the Organization was illegally engaged in banking by receiving money for deposit, disbursement, safekeeping or otherwise, or transacting the business of a savings and mortgage bank and/or building and loan association, without first complying with the provisions of R.A. No. 337, and that the order complained of assumes that the Organization had violated sections 2 and 6 of said Act.6 Yet respondent Judge found the searches and, seizures in question to be unreasonable, through the following process of reasoning: the deposition given in support of the application for a search warrant states that the deponent personally knows that the premises of the Organization, at No. 2745 Rizal Avenue, Manila,7 were being used unlawfully for banking and purposes. Respondent judge deduce, from this premise, that the deponent " knows specific banking transactions of the petitioner with specific persons," and, then concluded that said deponent ". . . could have, if he really knew of actual violation of the law, applied for a warrant to search and seize only books" or records: covering the specific purportedly illegal banking transactions of the petitioner with specific persons who are the supposed victims of said illegal banking transactions according to his knowledge. To authorize and seizeall the records listed in Annex A to said application for search warrant, without reference to specific alleged victims of the purported illegal banking transactions, would be to harass the petitioner, and its officers with a roving commission or fishing expedition for evidence which could be discovered by normal intelligence operations or inspections (not seizure) of books and records pursuant to Section 4 of Republic Act No 337 . . ." The concern thus shown by respondent judge for the civil liberty involved is, certainly, in line with the function of courts, as ramparts of justice and liberty and deserves the greatest encouragement and warmest commendation. It lives up to the highest traditions of the Philippine Bench, which underlies the people's faith in and adherence to the Rule of Law and the democratic principle in this part of the World. At the same time, it cannot be gainsaid the Constitutional injunction against unreasonable searches and seizures seeks to forestall, not purely abstract or imaginary evils, but specific and concrete ones. Indeed, unreasonableness is, in the very nature of things, a condition dependent upon the circumstances surrounding each case, in much the same way as the question whether or not "probable cause" exists is one which must be decided in the light of the conditions obtaining in given situations. Referring particularly to the one at bar, it is not clear from the order complained of whether respondent Judge opined that the above mentioned statement of the deponent to the effect that the Organization was engaged in the transactions mentioned in his deposition deserved of credence or not. Obviously, however, a mere disagreement with Judge Cancino, who issued the warrant,

Page 48 of 217 on the credibility of said statement, would not justify the conclusion that said municipal Judge had committed a grave abuse of discretion, amounting to lack of jurisdiction or excess of jurisdiction. Upon the other hand, the failure of the witness to mention particular individuals does not necessarily prove that he had no personal knowledge of specific illegal transactions of the Organization, for the witness might be acquainted with specific transactions, even if the names of the individuals concerned were unknown to him. Again, the aforementioned order would seem to assume that an illegal banking transaction, of the kind contemplated in the contested action of the officers of the Bank, must always connote the existence of a "victim." If this term is used to denote a party whose interests have been actually injured, then the assumption is not necessarily justified. The law requiring compliance with certain requirements before anybody can engage in banking obviously seeks to protect the public against actual, as well as potential, injury. Similarly, we are not aware of any rule limiting the use of warrants to papers or effects which cannot be secured otherwise. The line of reasoning of respondent Judge might, perhaps, be justified if the acts imputed to the Organization consisted of isolated transactions, distinct and different from the type of business in which it is generally engaged. In such case, it may be necessary to specify or identify the parties involved in said isolated transactions, so that the search and seizure be limited to the records pertinent thereto. Such, however, is not the situation confronting us. The records suggest clearly that the transactions objected to by the Bank constitute thegeneral pattern of the business of the Organization. Indeed, the main purpose thereof, according to its By-laws, is "to extend financial assistance, in the form of loans, to its members," with funds deposited by them. It is true, that such funds are referred to in the Articles of Incorporation and the By-laws as their "savings." and that the depositors thereof are designated as "members," but, even a cursory examination of said documents will readily show that anybody can be a depositor and thus be a "participating member." In other words, the Organization is, in effect, open to the "public" for deposit accounts, and the funds so raised may be lent by the Organization. Moreover, the power to so dispose of said funds is placed under the exclusive authority of the "founder members," and "participating members" are expressly denied the right to vote or be voted for, their "privileges and benefits," if any, being limited to those which the board of trustees may, in its discretion, determine from time to time. As a consequence, the "membership" of the "participating members" is purely nominal in nature. This situation is fraught, precisely, with the very dangers or evils which Republic Act No. 337 seeks to forestall, by exacting compliance with the requirements of said Act, before the transactions in question could be undertaken. It is interesting to note, also, that the Organization does not seriously contest the main facts, upon which the action of the Bank is based. The principal issue raised by the Organization is predicated upon the theory that the aforementioned transactions of the Organization do not amount to " banking," as the term is used in Republic Act No. 337. We are satisfied, however, in the light of the circumstance obtaining in this case, that the Municipal Judge did not commit a grave abuse of discretion in finding that there was probable cause that the Organization had violated Sections 2 and 6 of the aforesaid law and in issuing the warrant in question, and that, accordingly, and in line with Alverez vs. Court of First Instance (64 Phil. 33), the search and seizure complained of have not been proven to be unreasonable. Wherefore, the order of respondent Judge dated July 2, 1962, and the writ of preliminary mandatory injunction issued in compliance therewith are hereby annulled, and the writ of preliminary injunction issued by this Court on August 14, 1962, accordingly, made permanent, with costs against respondent First Mutual Savings and Loan Organization, Inc. It is so ordered.

QUA CHEE GAN, ET. AL. VS. THE DEPORTATION BOARD

G.R. No. L-10280 September 30, 1963
This is an appeal from the decision of the Court of First Instance of Manila (in Sp. Proc. No. 20037) denying the petition for writs of habeas corpus and/or prohibition, certiorari, and mandamus filed by Qua Chee Gan, James Uy, Daniel Dy alias Dee Pac, Chan Tiong Yu, Chua Chu Tian, Chua Lim Pao alias Jose Chua, and Basilio King. The facts of the case, briefly stated, are as follows:. On May 12, 1952, Special Prosecutor Emilio L. Galang charged the above-named petitioners before the Deportation Board, with having purchased U.S. dollars in the total sum of $130,000.00, without the necessary license from the Central Bank of the Philippines, and of having clandestinely remitted the same to Hongkong and petitioners, Qua Chee Gan, Chua Lim Pao alias Jose Chua, and Basilio King, with having attempted to bribe officers of the Philippine and United States Governments (Antonio Laforteza, Chief of the Intelligence Division of the Central Bank, and Capt. A. P. Charak of the OSI, U.S. Air Force) in order to evade prosecution for said unauthorized purchase of U.S. dollars.1 Following the filing of said deportation charges, a warrant for the arrest of said aliens was issued by the presiding member of the Deportation Board. Upon their filing surety bond for P10,000.00 and cash bond for P10,000.00, herein petitioners-appellants were provisionally set at liberty. On September 22, 1952, petitioners-appellants filed a joint motion to dismiss the charges presented against them in the Deportation Board for the reason, among others, that the same do not constitute legal ground for deportation of aliens from this country, and that said Board has no jurisdiction to entertain such charges. This motion to dismiss having been denied by order of the Board of February 9, 1953, petitioners-appellants filed in this Court a petition for habeas corpus and/or prohibition, which petition was given due course in our resolution of July 7, 1953, but made returnable to the Court of First Instance of Manila (G.R. No. L6783). The case was docketed in the lower court as Special Proceeding No. 20037.

Page 49 of 217 At the instance of petitioners and upon their filing a bond for P5,000.00 each, a writ of preliminary injunction was issued by the lower court, restraining the respondent Deportation Board from hearing Deportation charges No. R-425 against petitioners, pending final termination of the habeas corpus and/or prohibition proceedings. On July 29, 1953, the respondent Board filed its answer to the original petition, maintaining among others, that the Deportation Board, as an agent of the President, has jurisdiction over the charges filed against petitioners and the authority to order their arrest; and that, while petitioner Qua Chee Gan was acquitted of the offense of attempted bribery of a public official, he was found in the same decision of the trial court that he did actually offer money to an officer of the United States Air Force in order that the latter may abstain from assisting the Central Bank official in the investigation of the purchase of $130,000.00 from the Clark Air Force Base, wherein said petitioner was involved. After due trial, the court rendered a decision on January 18, 1956, upholding the validity of the delegation by the president to the Deportation Board of his power to conduct investigations for the purpose of determining whether the stay of an alien in this country would be injurious to the security, welfare and interest of the State. The court, likewise, sustained the power of the deportation Board to issue warrant of arrest and fix bonds for the alien's temporary release pending investigation of charges against him, on the theory that the power to arrest and fix the amount of the bond of the arrested alien is essential to and complement the power to deport aliens pursuant to Section 69 of the Revised Administrative Code. Consequently, the petitioners instituted the present appeal. . It may be pointed out at the outset that after they were provisionally released on bail, but before the charges filed against them were actually investigated, petitioners-appellant raised the question of jurisdiction of the Deportation Board, first before said body, then in the Court of First Instance, and now before us. Petitioners-appellants contest the power of the President to deport aliens and, consequently, the delegation to the Deportation Board of the ancillary power to investigate, on the ground that such power is vested in the Legislature. In other words, it is claimed, for the power to deport to be exercised, there must be a legislation authorizing the same. Under Commonwealth Act No. 613 (Immigration Act of 1940), the Commissioner of Immigration was empowered to effect the arrest and expulsion of an alien, after previous determination by the Board of Commissioners of the existence of ground or grounds therefor (Sec- 37). With the enactment of this law, however, the legislature did not intend to delimit or concentrate the exercise of the power to deport on the Immigration Commissioner alone, because in its Section 52, it provides:. SEC. 52. This Act is in substitution for and supersedes all previous laws relating to the entry of aliens into the Philippines, and their exclusion, deportation, and repatriation therefrom, with the exception of section sixty-nine of Act Numbered Twenty-seven hundred and eleven which shall continue in force and effect: ..." (Comm. Act No. 613). Section 69 of Act No. 2711 (Revised Administrative Code) referred to above reads:. SEC. 69 Deportation of subject to foreign power. A subject of a foreign power residing in the Philippines shall not be deported, expelled, or excluded from said Islands or repatriated to his own country by the President of the Philippines except upon prior investigation, conducted by said Executive or his authorized agent, of the ground upon which Such action is contemplated. In such case the person concerned shall be informed of the charge or charges against him and he shall be allowed not less than these days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing witnesses." While it may really be contended that the aforequoted provision did not expressly confer on the President the authority to deport undesirable aliens, unlike the express grant to the Commissioner of Immigration under Commonwealth Act No. 613, but merely lays down the procedure to be observed should there be deportation proceedings, the fact that such a procedure was provided for before the President can deport an alien-which provision was expressly declared exempted from the repealing effect of the Immigration Act of 1940-is a clear indication of the recognition, and inferentially a ratification, by the legislature of the existence of such power in the Executive. And the, exercise of this power by the chief Executive has been sanctioned by this Court in several decisions.2 Under the present and existing laws, therefore, deportation of an undesirable alien may be effected in two ways: by order of the President, after due investigation, pursuant to Section 69 of the Revised Administrative Code, and by the Commissioner of Immigration, upon recommendation by the Board of Commissioners, under Section 37 of Commonwealth Act No. 613. Petitioners contend, however, that even granting that the President is invested with power to deport, still he may do so only upon the grounds enumerated in Commonwealth Act No. 613, as amended, and on no other, as it would be unreasonable and undemocratic to hold that an alien may be deported upon an unstated or undefined ground depending merely on the unlimited discretion of the Chief Executive. This contention is not without merit, considering that whenever the legislature believes a certain act or conduct to be a just cause for deportation, it invariably enacts a law to that effect. Thus, in a number of amendatory acts, grounds have been added to those originally contained in Section 37 of Commonwealth Act No. 613, as justifying deportation of an alien, as well as other laws which provide deportation as part of the penalty imposed on aliens committing violation thereof. Be this as it may, the charges against the herein petitioners constitute in effect an act of profiteering, hoarding or blackmarketing of U.S. dollars, in violation of the Central Bank regulations an economic sabotage which is a ground for

Page 50 of 217 deportation under the provisions of Republic Act 503 amending Section 37 of the Philippine Immigration Act of 1940. The President may therefore order the deportation of these petitioners if after investigation they are shown to have committed the act charged. There seems to be no doubt that the President's power of investigation may be delegated. This is clear from a reading of Section 69 of the Revised Administrative Code which provides for a "prior investigation, conducted by said Executive (the President) or his authorized agent." The first executive order on the subject was that of Governor General Frank Murphy (No. 494, July 26, 1934), constituting a board to take action on complaints against foreigners, to conduct investigations and thereafter make recommendations. By virtue of Executive Order No. 33 dated May 29, 1936, President Quezon created the Deportation Board primarily to receive complaints against aliens charged to be undesirable, to conduct investigation pursuant to Section 69 of the Revised Administrative Code and the rules and regulations therein provided, and make the corresponding recommendation.3 Since then, the Deportation Board has been conducting the investigation as the authorized agent of the President. This gives rise to the question regarding the extent of the power of the President to conduct investigation, i.e., whether such authority carries with it the power to order the arrest of the alien complained of, since the Administrative Code is silent on the matter, and if it does, whether the same may be delegated to the respondent Deportation Board.1awphl.nt Let it be noted that Section 69 of the Revised Administrative Code, unlike Commonwealth Act No. 613 wherein the Commissioner of Immigration was specifically granted authority, among others, to make arrests, fails to provide the President with like specific power to be exercised in connection with such investigation. It must be for this reason that President Roxas for the first time, saw it necessary to issue his Executive Order No. 69, dated July 29, 1947, providing For the purpose of insuring the appearance of aliens charged before the Deportation Board created under Executive Order No. 37, dated January 4, 1947, and facilitating the execution of the order of deportation whenever the President decides the case against the respondent. I, Manuel Roxas, President of the Philippines, by virtue of the powers vested in me by law, do hereby order that all respondents in deportation proceedings shall file a bond with the Commissioner of Immigration in such amount and containing such conditions as he may prescribe. . xxx xxx xxx

Note that the executive order only required the filing of a bond to secure appearance of the alien under investigation. It did not authorize the arrest of the respondent. It was only on January 5, 1951, when President Quirino reorganized the Deportation Board by virtue of his Executive Order No. 398, that the Board was authorized motu proprio or upon the filing of formal charges by the Special Prosecutor of the Board, to issue the warrant for the arrest of the alien complained of and to hold him under detention during the investigation unless he files a bond for his provisional release in such amount and under such conditions as may be prescribed by the Chairman of the Board. As has been pointed out elsewhere, Section 69 of the Revised Administrative Code, upon whose authority the President's power to deport is predicated, does not provide for the exercise of the power to arrest. But the Solicitor General argues that the law could not have denied to the Chief Executive acts which are absolutely necessary to carry into effect the power of deportation granted him, such as the authority to order the arrest of the foreigner charged as undesirable. In this connection, it must be remembered that the right of an individual to be secure in his person is guaranteed by the Constitution in the following language:. 3. The right of the People to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Sec 1, Art. III, Bill of Rights, Philippine Constitution). As observed by the late Justice Laurel in his concurring opinion in the case of Rodriguez, et al. v. Villamiel, et al. (65 Phil. 230, 239), this provision is not the same as that contained in the Jones Law wherein this guarantee is placed among the rights of the accused. Under our Constitution, the same is declared a popular right of the people and, of course, indisputably it equally applies to both citizens and foreigners in this country. Furthermore, a notable innovation in this guarantee is found in our Constitution in that it specifically provides that the probable cause upon which a warrant of arrest may be issued, must be determined by the judge after examination under oath, etc., of the complainant and the witnesses he may produce. This requirement "to be determined by the judge" is not found in the Fourth Amendment of the U.S. Constitution, in the Philippine Bill or in the Jones Act, all of which do not specify who will determine the existence of a probable cause. Hence, under their provisions, any public officer may be authorized by the Legislature to make such determination, and thereafter issue the warrant of arrest. Under the express terms of our Constitution, it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in a criminal case and administrative warrants in administrative proceedings. And, if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the

Page 51 of 217 warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt. The contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when, as already stated, there is already an order of deportation. To carry out the order of deportation, the President obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is enough, as was true before the executive order of President Quirino, that a bond be required to insure the appearance of the alien during the investigation, as was authorized in the executive order of President Roxas. Be that as it may, it is not imperative for us to rule, in this proceeding - and nothing herein said is intended to so decide on whether or not the President himself can order the arrest of a foreigner for purposes of investigation only, and before a definitive order of deportation has been issued. We are merely called upon to resolve herein whether, conceding without deciding that the President can personally order the arrest of the alien complained of, such power can be delegated by him to the Deportation Board. Unquestionably, the exercise of the power to order the arrest of an individual demands the exercise of discretion by the one issuing the same, to determine whether under specific circumstances, the curtailment of the liberty of such person is warranted. The fact that the Constitution itself, as well as the statute relied upon, prescribe the manner by which the warrant may be issued, conveys the intent to make the issuance of such warrant dependent upon conditions the determination of the existence of which requires the use of discretion by the person issuing the same. In other words, the discretion of whether a warrant of arrest shall issue or not is personal to the one upon whom the authority devolves. And authorities are to the effect that while ministerial duties may be delegated, official functions requiring the exercise of discretion and judgment, may not be so delegated. Indeed, an implied grant of power, considering that no express authority was granted by the law on the matter under discussion, that would serve the curtailment or limitation on the fundamental right of a person, such as his security to life and liberty, must be viewed with caution, if we are to give meaning to the guarantee contained in the Constitution. If this is so, then guarantee a delegation of that implied power, nebulous as it is, must be rejected as inimical to the liberty of the people. The guarantees of human rights and freedom can not be made to rest precariously on such a shaky foundation. We are not unaware of the statements made by this Court in the case of Tan Sin v. Deportation Board(G.R. No. L-11511, Nov. 28,1958). It may be stated, however, that the power of arrest was not squarely raised in that proceeding, but only as a consequence of therein petitioner's proposition that the President had no inherent power to deport and that the charges filed against him did not constitute ground for deportation. . IN VIEW OF THE FOREGOING, Executive Order No. 398, series of 1951, insofar as it empowers the Deportation Board to issue warrant of arrest upon the filing of formal charges against an alien or aliens and to fix bond and prescribe the conditions for the temporary release of said aliens, is declared illegal. As a consequence, the order of arrest issued by the respondent Deportation Board is declared null and void and the bonds filed pursuant to such order of arrest, decreed cancelled. With the foregoing modification, the decision appealed from is hereby affirmed. No costs. So ordered.

Collector of Customs vs. Hon. Villaluz

G.R. No. L-34038 On July 1, 1971, petitioner Collector of Customs, Salvador T. Mascardo filed against Cesar T. Makapugay, a letter complaint with respondent Judge of the Circuit Criminal Court for violation of: (a) Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713, (b) Central Bank Circular No. 265, in relation to Section 34 of Republic Act No. 265, otherwise known as The Central Bank Act, and (c) Section 3601 and 3602 of Republic Act No. 1937, in relation to Sections 2505 and 2530 (m) 1 of the same Act, claiming that Cesar T. Makapugay "with malicious intention to defraud the government criminally, willfully and feloniously brought into the country FORTY (40) cartons of "untaxed blue seal" Salem cigarettes and FIVE (5) bottles of Johny Walker Scotch Whiskey, also "untaxed", without the necessary permit from the proper authorities. The respondent submitted a Baggage Declaration Entry which did not declare the said articles. The Customs Examiner assigned further asked him if he has something more to declare but the answer was in the negative. And in utter disregard of existing Central Bank Circulars particularly C.B. Circular 265, as amended, the respondent brought into the country various Philippine Money in the amount of Two Thousand Two Hundred Eighty (P2,280.00) Pesos cleverly hidden in one of the pieces of baggage examined by the assigned customs examiner, without any prior permit from the Central Bank authorities. ... " (p. 11, rec.). Respondent Judge assumed jurisdiction to conduct and did conduct the preliminary investigation, and on July 6, 1971, issued the challenged order, dismissing "the case with prejudice and ordering the return to private respondent the amount of P2,280.00, his passport No. Ag-2456 FA - No. B103813, and one (1) box of air-conditioning evaporator only, as well as the forfeiture of forty (40) cartons of untaxed blue seal Salem cigarettes and five (5) bottles of Johnny Walker Scotch Whiskey" (p. 13, rec.). Armed with said order, private respondent Makapugay demanded that petitioner release the articles so stated. Petitioner Collector of Customs refused to obey the order due to the "prior institution of seizure proceedings thereon." The refusal prompted respondent Makapugay to file a complaint for "Open Disobedience" under Article 231 of the Revised Penal Code, before the City Fiscal of Pasay City. Hence, this petition for certiorari with preliminary injunction, seeking to annul and set aside the order dated July 6, 1971 on the ground that respondent Judge has no power to conduct a preliminary investigation of criminal complaints directly filed with him, cannot legally order the dismissal "with prejudice" of a criminal case after conducting a preliminary investigation thereon, and is without authority to order the return of articles subject of seizure proceedings before Customs authorities.

Page 52 of 217 In due time, respondents filed their respective answers to the petition and subsequently both parties submitted their respective memoranda in lieu of oral argument. G. R. No. L-34243 On June 22, 1971, respondent Collector of Customs filed a letter- complaint with respondent Judge against petitioner Nicanor Marcelo for an alleged violation of Section 3602 in relation to Section 2505 of Republic Act 1937, otherwise known as the Tariff and Customs Code, supposed to have been committed in the following manner: ... Mr. Marcelo who is an arriving passenger from Hongkong on board a Philippine Air Lines plane, Flight 307, on June 22, 1971, criminally, feloniously, and with intention to defraud the government did not declare the contents of his pieces of baggage in the Baggage declaration Entry nor with the assigned Customs Examiner. ... When his pieces of baggage were examined, instead of personal effects as declared in the Baggage Declaration Entry, what were found were various assorted Watches, Bags, Montagut shirts and Dress materials which are highly taxable. The act of passenger Marcelo in intentionally refusing to declare the said articles in the Baggage Declaration Entry, and before the Customs Examiner despite inquiries made, constitute a criminal offense within the meaning of Section 3602 of the Tariff and Customs Code of the Philippines. ... (p. 19, rec.). The criminal complaint having been docketed as Case No. CCC-VII-854-P.C., the respondent Judge assumed jurisdiction over the objection of petitioners counsel, conducted the preliminary examination and investigation, simultaneously in the manner provided for by Section 13, Rule 112 of the New Rules of Court, and thereafter on October 6, 1971 issued the following order: WHEREFORE, there being a preliminary investigation and examination conducted by the Court and considering that the respondent was given a chance to defend himself let a Warrant of Arrest be issued for his apprehension. The respondent is hereby ordered to post a bond in the amount of P5,000.00 for his provisional release. Pursuant to Section 6, Rule 135 of the New Rules of Court, in relation to Section 13, Rule 113 thereto, the City Fiscal of Pasay is hereby ordered to file the corresponding information against the respondent before this court of competent jurisdiction within FORTY EIGHT (48) HOURS from receipt hereof (p. 23, rec.) Petitioner Nicanor Marcelo filed this action for certiorari with preliminary injunction, impugning the validity of the order of respondent Judge dated October 6, 1971, on the same ground as the petition in G.R. No. L-34038. On October 20, 1971, the Supreme Court adopted resolution requiring respondents to rile an answer and likewise issued a writ of preliminary injunction, "restraining respondent Judge, his representatives, assigns or persons acting upon his orders, place or stead, from executing, enforcing and implementing his order of October 6, 1971 ... "(p. 32, rec.) In compliance therewith, respondent Judge filed a petition for admission of answer on November 29, 1971 (pp. 43-44, rec.), which was granted by this Court in its December 13, 1971 resolution (p. 62, rec.). On the other hand, respondent Collector of Customs, through the Solicitor General, filed a manifestation on February 1, 1972, adopting as his answer to the petition, the legal grounds averred in the original petition in G.R. No. , Collector of Customs, etc. versus Hon. Onofre A. Villaluz, etc., et al (p. 72, rec.). On June 13, 1972, the Supreme Court by resolution resolved to consider the case submitted for decision after noting the failure of petitioner to file his memorandum (p. 94, rec.). G. R. No. L-36376 On February 22, 1973, private respondents Gregorio Conde and Anastacia Torillo, filed a complaint directly with the Circuit Criminal Court, indicting petitioners with violations of the Anti-Graft Law. The complaint was ultimately docketed and on the same day (February 22, 1973), respondent Judge forthwith issued an order of the following tenor: Considering that the complaint filed ... sufficient in form and substance, the same having been filed in accordance with Section 13, Rule 112 of the New Rules of Court, and pursuant to the doctrine laid down by the Supreme Court in the case of "Mateo vs. Villaluz," let the preliminary investigation of this case be set on February 24, 1973 at 8:00 o'clock in the morning (p. 22, rec.). On the day set, petitioners appeared at the sala of respondent Judge who proceeded to conduct a preliminary investigation of the case. The same was reset on February 26, 1973.

Page 53 of 217 Immediately before the hearing of February 26, 1973, petitioners, through counsel, filed an "Urgent Motion to Suspend Preliminary Investigation" contesting the power of the respondent Judge to conduct the preliminary examination and investigation (p. 23, rec.), which was denied by respondent Judge in his order dated February 27, 1973 (p. 31, rec.). Counsel for petitioners then asked for time to raise the issue before this Court, which respondent Judge granted by giving petitioners a period of just one (1) day to seek relief from this Tribunal. Accordingly, herein petitioners filed this petition. On March 2, 1973, this Court required respondents to answer the petition and issued a temporary restraining order "enjoining respondent Judge from ... causing and effecting the arrest of petitioners herein" (p. 39, rec.). In his answer filed on March 14, 1973, respondent Judge, invoking the same arguments in G.R. No. L-34243, held on to the view that the Circuit Criminal Courts are vested with the power and authority to conduct preliminary investigations. G. R. No. L-38688 On May 23, 1974, private respondent Felix Halimao filed a criminal complaint directly with the Circuit Criminal Court presided over by respondent Judge charging herein petitioner with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which complaint was docketed as Criminal Case No. Prel. Inv. 116-Rizal. At the hearing of May 27, 1974, petitioner, through counsel, filed an "Urgent Motion to Suspend Preliminary Investigation" (p. 9, rec.) based on the ground that respondent Judge has no authority to conduct the same. After arguments by counsels for both parties, the respondent Judge denied petitioner's motion. An oral motion for reconsideration was likewise denied (pp. 14-15, rec.). Hence, this petition. On May 31, 1974, this Court by resolution gave due course to the petition and issued a restraining order, "enjoining respondent Judge, his agents, representatives, and/or any person or persons acting upon his orders or in his place or stead from proceeding further with the preliminary investigation ... " (p. 24, rec.) On June 17, 1974, it appearing that the case involved in the petition is criminal in nature, the Court required herein petitioner to IMPLEAD the People of the Philippines as party-respondent (p. 26, rec.). In conformity thereto, petitioner through counsel, filed on June 28, 1974 an amended petition impleading The People (pp. 49-50, rec.). Except for the Solicitor General who appeared for The People of the Philippines, respondents in answer, frontally met the averments of petitioner. G. R. No. L-39625 On October 24, 1974, petitioner filed this instant petition seeking to annul "any preliminary investigation conducted by respondent Judge in Preliminary Inv. No. 72-Rizal, Circuit Criminal Court, 7th Judicial District, as well as the warrant, if any, that may be issued for the arrest and imprisonment of petitioner" and to enjoin permanently respondent Judge from conducting preliminary investigations and from ordering petitioner's arrest. On October 30, 1974, the Court required the respondents to file their answer within ten (10) days from notice thereof and issued, effective immediately, a temporary restraining order against respondent Judge (p. 64, rec.). On November 13, 1974, the Solicitor General filed a manifestation requesting to be excused from filing an answer considering that in three other cases (The Collector of Customs v. Hon. Onofre A. Villaluz, G.R. No. L-34038; Nicanor Marcelo v. Hon. Onofre A. Villaluz, G.R. No. L-34243; and Francisco Felix v. Hon. Onofre A. Villaluz, G.R. No. L-38688) which involve the same legal issue, his office maintains that respondent Judge has no authority to conduct a preliminary investigation of criminal cases which he may try and decide under Republic Act No. 5179 (p. 81, rec.). On November 20, 1974, private respondent filed his answer (pp. 87-104, rec.). Petitioner, on January 22, 1975, filed a motion praying that the instant case be consolidated and decided jointly with G.R. Nos. L34038, L-34243, L-36376 and L-38688 as they involve the same issue; and that the memoranda filed for petitioners in said four cases be reproduced and adopted as the memorandum for petitioner in this case, which should be deemed submitted for decision together with the aforementioned cases (pp. 122-124, rec.). Said motion was granted in the resolution of February 10, 1975 (p. 129, rec.).

Page 54 of 217 In his pleading dated February 5, 1975, private respondent (pp. 130-132, rec.) stated that he joins the petitioner in his plea for the consolidation of the instant case with cases Nos. L-34038, L-36376 and L-38688 and prayed that the memorandum filed by respondent in L-38688 be considered reproduced and adopted as the memorandum for private respondent in this case, in addition to the affirmative defenses and arguments contained in private respondent's answer to the petition, and that this case be submitted for decision together with the aforementioned cases (p. 137, rec.). The records disclosed the following antecedent facts. On January 11, 1974, herein private respondent Jose Arellano filed a complaint against Pedro E. Nieva, Jr., herein petitioner, together with his wife Pacita and daughter Patricia N. with the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, for violation of the Anti-Graft and Corrupt Practices Act (RA No. 3019) in connection with the P230,000.00 industrial loan obtained by the Areson Woodtech Manufacturing Company headed by the complainant, Jose Arellano, from the Development Bank of the Philippines, where herein petitioner holds the Position of Auditor. The cm was docketed therein as Criminal Case Prel. Inv. CCC-VII72 Rizal (pp. 1-2, 90-91, pp. 14-16 [Annex "A"] rec.). On the same day the aforesaid complaint was filed in court, respondent Judge issued an order that reads: Pursuant to Section 14, Rule 112 of the New Rules of Court in relation to the doctrine laid down by the Supreme Court in the mu of "Mateo versus Villaluz", Assistant City Fiscal Teodoro B. Santos is hereby ordered to conduct the preliminary investigation of the above-entitled case within five (5) days from receipt hereof and to file the necessary information in a court of competent jurisdiction if the evidence so warrants. ... (pp. 2, 91 [Annex "B"], pp. 21-22, rec.). On May 22, 1974, investigating Fiscal Teodoro B. Santos endorsed the records of the case back to respondent Judge, because ... (T)he facts and circumstances which has (sic) been the basis of this instant suit is the same set of first and circumstances and involving the same parties in a case of ESTAFA THRU FALSIFICATION now pending preliminary investigation and also before this Honorable Court. Hence, this endorsement in order to avoid duplication of effort and time in' the resolution and disposition of the same incident. In an urgent ex-parte motion dated May 24, 1974 filed with the Circuit Criminal Court pursuant to paragraph 1 of the Joint Circular of the Department of Justice and the Department of National Defense dated April 29, 1974, herein private respondent prayed that the endorsement of Fiscal Santos be given due course and that the preliminary investigation be conducted by the respondent Judge (pp. 3, 92, 104 [Annex "I"], rec.). Herein petitioner opposed the same in a pleading dated June 1, 1974 (p. 3, pp. 40-49 [Annex "F"], rec.), which was amplified in another pleading dated September 24, 1974 (pp. 3, 50-59 [Annex "G"], rec.). Under date of June 18, 1974, private respondent filed a motion to strike out herein petitioner's opposition to complainant's ex parte urgent motion for preliminary investigation in view of the failure of herein petitioner's counsel to comply with the order of the Court to furnish a copy of his opposition to complainant Jose Arellano (pp. 93, 105-106 [Annex "2"], rec.). On September 24, 1974, herein petitioner filed his opposition to the motion to strike out herein respondent's opposition (pp. 7, 5559 [Annex "G"], rec.). On the same day, a hearing was conducted by the respondent Judge on the urgent motion for preliminary investigation and immediately thereafter, he denied said opposition of herein petitioner (Annex "H", p. 62, pp. 3, 93, rec.). Hence, this petition. G. R. No. L-40031 On November 2, 1973, Jose Arellano, private respondent herein, filed with the Circuit Criminal Court at Pasig, Rizal, a complaint charging herein petitioner with estafa, allegedly committed under the circumstances provided for in paragraph 4 1(b) Article 315 of the Revised Penal Code (p. 12, rec.). Said complaint was subsequently docketed as CCC Case No. Prel. Inv. -65-Rizal. Thereupon, respondent Judge proceeded to conduct the preliminary investigation in question. After the termination of the proceedings, respondent Judge issued on May 31, 1974 the challenged resolution which reads: Wherefore, pursuant to Section 13, Rule 113 of the New Rules of Court, Assistant City Fiscal Teodoro B. Santos is hereby ordered to file the necessary information for the crime of Estafa against respondent Pacita Nieva, in a court of competent jurisdiction, within forty-eight (48) hours from receipt hereof. Let a warrant of arrest be issued for the immediate apprehension of respondent Mrs. Pacita Nieva, and for her provisional liberty, she is hereby ordered to post a bond in the amount of P20,000.00. (p. 24, rec.).

Page 55 of 217 On July 26, 1974, petitioner's counsel filed an urgent motion to declare the preliminary investigation proceedings null and void ab initio due to lack of jurisdiction on the part of the court. to conduct the same, re-echoing the arguments invoked by petitioners in G. R. Nos. L-34038, L-34243, L-36376 and L-38688 (p. 14, rec.). In an order dated August 8, 1974, respondent Judge denied the same (p. 22, rec.). On January 28, 1975, this Court by resolution required respondents to file an answer to the petition and not to move for the dismissal of the same. The Court further' resolved to consolidate the case with Cases Nos. L-38688, L-34038, L-34243, and L-36376 (p. 26, rec.). In a manifestation filed on February 10, 1975, the Solicitor General requested that he be excused from filing an answer on the ground that in three cases (G.R. Nos. L-34038, L-34243 and L-38688), which involve the same legal issue, the counsel for the People has taken the position that respondent Judge has no authority or jurisdiction to conduct a preliminary investigation of criminal cases which he may try and decide under Republic Act No. 5179. Private respondent, on the other hand, through the Citizens Legal Assistance Office of the Department of Justice, filed his answer on February 20, 1975, maintaining that respondent Judge has jurisdiction to conduct preliminary investigation invoking particularly Section 13, Rule 112 of the Revised Rules of Court in relation to Sections 1, 3 and 6 of Republic Act No. 5179. The one common legal issue posed by these six cases is whether a Circuit Criminal Court possesses the power to conduct preliminary investigations. Neither the explanatory note to House Bill No. 9801 (now R.A. No. 5179,) nor the available Congressional debates intimate that Circuit Criminal Courts are clothed with the authority to conduct preliminary examinations and investigations (Congressional Records of House, March 28, 1967, pp. 41-45; May 15, 1967). WE therefore examine the law. Petitioners, in maintaining that respondent Judge has no such power, rest their claim on Section I of Republic Act No. 5179, which provides: In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter: a. Crimes committed by public officers, crimes against persons and crimes. against property as defined and penalized under the Revised Penal Code, whether simple or complex with other crimes; b. Violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, ... ; c. Violations of Sections 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175 and 345 of the National Internal Revenue Code. (emphasis supplied). Petitioners argue that said courts, having been conferred limited jurisdiction, cannot exercise such power of preliminary investigation, the same not being embraced and contemplated within its given function to "try and decide" specific criminal cases. What is limited by Republic Act No. 5179 is the scope of the cases that may be tried by Circuit Criminal Courts. Circuit Criminal Courts are of limited jurisdiction, only because they cannot try and decide all criminal cases falling under the jurisdiction of the Courts of First Instance as courts of general jurisdiction. They can only take cognizance of cages expressly specified in Section 1 of Republic Act No. 5179, as amended by Presidential Decree No. 126. Nevertheless, they have the same powers and functions as those conferred upon regular Courts of First Instance necessary to effectively exercise such special and limited jurisdiction. This is plain and evident from Sections 3 and 6 of their organic law, Republic Act No. 5179: Section 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First Instance and the trial, and disposition and appeal of criminal cases therein shall be applicable to the circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this act. xxx xxx xxx Section 6. ... Unless inconsistent with the provisions of this Act, the Circuit Criminal Courts shall have the same powers as those conferred by the Judiciary Act and the Rules of Court upon regular Courts of First Instance, insofar as may be necessary to carry their jurisdiction into effect.

Page 56 of 217 Judges of the regular Courts of First Instance are expressly conferred the authority to conduct preliminary examination and investigation by Sections 13 and 14 of Rule 112 of the Revised Rules of Court: Section 13. Preliminary examination and investigation by the judge of the Court of First Instance. Upon complaint filed directly with the Court of First Instance, without previous preliminary examination and investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the justice of the peace referred to in the second paragraph of Section 2, hereof - for preliminary examination and investigation, or himself conduct both preliminary examination and investigation simultaneously in the manner provided in the preceding sections, and should he find reasonable ground to believe that the defendant has committed the offense charged, he shall issue a warrant for his arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information. (emphasis supplied). Section 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance. Except where an investigation has been conducted by a judge of first instance, justice of the peace or other officer in accordance with the provisions of the preceding sections no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. ... The power of preliminary examination and investigation, which may be exercised by judges of the Circuit Criminal Courts, is without doubt, "not inconsistent with the provisions of Republic Act No. 5179," and likewise, "necessary to carry their jurisdiction into effect." Moreover, Congress further confirmed that the Court of First Instance has the power to conduct preliminary investigation by approving on September 8, 1967 Republic Act No. 5180, prescribing a uniform system of preliminary investigation by all government prosecutors, which provides: Sec. 1. Notwithstanding any provision of law to the contrary and except when an investigation has been conducted by a Judge of First Instance, city or municipal judge or other officer in accordance with law and the Rules of Court of the Philippines, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal or any of his assistants, or by a state attorney or his assistants, without first giving the amused a chance to be heard in a preliminary investigation conducted by him by issuing a corresponding subpoena. ... Sec. 2. The provisions of Section fifteen, Rule 112, of the New Rules of Court Of the Philippines, shall be observed in the investigations of persons in custody. From the abovequoted Provisions, Republic Act No. 5180 likewise continues the procedure prescribed in the Revised Rules of court of 1964, Particularly Rule 112 thereof. The aforequoted portion of Section 1 of Republic Act No. 5180 was not modified by the amendatory Presidential Decrees Nos. 77 and 911 issued respectively on December 6, 1972 and March 23, 1976. More decisively, the 1935 as well as 1973 Constitution vests this essential power in all courts to first determine probable cause before ordering the arrest of those charged with a criminal offense (Section 1[3], Art. III, 1935 Constitution; See. 3, Art. IV, 1973 Constitution). The determination of "Probable cause" is the sole object of preliminary examinations. Surely, congress could not have possibly intended to deny the Circuit Criminal Courts such constitutional prerogative, which is part of the basic constitutional right of an individual whose person cannot be legally seized without prior preliminary examination by a judge. WE enunciated that the creation of the Circuit Criminal Courts is for the purpose of alleviating the burden of the regular Courts of first Instance and to accelarate the disposition of criminal cases pending to be filed therein(People vs. Gutierrez, etc., et al., 36 SCRA 172; Osmea vs. Sec. of Justice, G.R. No. L-32033, Sept 30, 1971, 199) or to contribute to the speedy resolution of criminal cases and help curb the progress of criminality in the country (Paraguya vs. Tiro, 41 SCRA 13s). As opined by Mr. Justice Barredo in his concurring opinion in the Gutierrez case, supra, "... Circuit Criminal Courts are nothing but additional branches of the regular Courts of First Instance in their respective districts ..." , which he reiterated in his concurring opinion in the Osmea case, thus: My principal reason for my vote in favor of the judgment in this case is that I cannot find any justification for allowing the Secretary of Justice to have any part at all in the distribution or assignment of cases among the different branches of any Court of First Instance, of which the corresponding Circuit Criminal Court is one. I took this view in my concurring opinion in the case of People v. Gutierrez, cited in the main opinion of Justice Villamor, and I cannot see why I must opine differently now. ... (41 SCRA 211). If the main purposes then in creating Circuit Criminal Courts are to alleviate the burden of the regular Courts of First Instance and to accelerate the disposition of the cases therein as well as stem the tide of criminality, it is only logical that such authority vested in the judges of the Courts of First Instance is likewise conferred on Circuit Criminal Courts. Otherwise, the Courts of First Instance would still be carrying the burden of conducting preliminary. investigations in those cases where Circuit Criminal Courts have jurisdiction and consequently delaying the trial and disposition of criminal cases pending before such Courts of First Instance.

Page 57 of 217 That Congress, in enacting Republic Act No. 5179 clearly intended, by Sections 3 and 6 thereof, to clothe the Circuit Criminal Court with all the powers vested in regular Courts of First Instance including the authority to conduct preliminary examinations and investigations, is confirmed by the Dangerous Drugs Act of 1972, otherwise known as Republic Act No. 6425, as amended by Presidential Decree No. 44, Section 39 of which confers on Circuit Criminal Courts, Courts of First Instance and Juvenile and Domestic Relations Courts concurrent original jurisdiction over all offenses punishable thereunder and expressly directs that the "preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date-of their filing." Before the amendment, the law required only seven (7) days from the date of the commencement of the preliminary investigation. Section 39, as amended, reads: Sec. 39. Jurisdiction. The Court of First Instance, Circuit Criminal Court and Juvenile and Domestic Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable under this Act: Provided, that in cities or provinces where there are Juvenile and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under sixteen years of age. The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. Where the preliminary investigation is conducted by a prosecuting officer and a prima facie case is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist , the corresponding information shall be filed by the proper prosecuting officer within forty-eight (48) hours from the date of receipt of the records of the case. Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case. It is patent that the aforequoted provision of Section 39 of Republic Act No. 6425 affirms the power of the Circuit Criminal Courts to conduct preliminary examination and investigation in all the cases falling under their jurisdiction and additionally fixes the period for preliminary investigation, the filing of the information and the rendition of decisions in all offenses penalized by the Dangerous Drugs Act of 1972. Under the amendment, the Circuit Criminal Court no longer has exclusive, but still retains concurrent, jurisdiction with the Court of First Instance and Juvenile and Domestic Relations Courts under the Dangerous Drugs Act. Its authority to conduct preliminary examination and investigation granted under Section 6 of Republic Act No. 5179, remains intact and undiminished; because the amendatory decree expressly directs that "If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information should be filed by the proper prosecuting officer ... " There is nothing in the amendatory decree from which it can be reasonably inferred that since the jurisdiction of the Circuit Criminal Court over violations of the Dangerous Drugs Act is no longer exclusive, Circuit Criminal Court Judges no longer possess the authority to conduct preliminary examination and investigation. Recognizing the constitutional power of the courts, including the Courts of First Instance, to conduct preliminary examination, other special laws specifically vest such authority exclusively in the Court of First Instance in case of violation of the Revised Election Code (Sec. 187, 1947 Revised Election Code, as amended; Sec. 234, 1971 Rev. Election Code) and of the Anti-subversion Act when the penalty imposable for the offense is prision mayor to death (Sec. 16, Rep. Act No. 1700). It is urged that the word "judge" in the above-quoted section of Presidential Decree No. 44 (and also in the. 1935 and 1973 Constitutions) contemplates not the Court of First Instance Judge nor the Circuit Criminal Court Judge but the municipal judge. As heretofore stated, it is an elementary precept in statutory construction that where the law does not distinguish, WE should not distinguish (Colgate Palmolive Philippines, Inc. vs. Gimenez, L-14787, Jan. 28, 1961, 1 SCRA 267). The Statute cannot give a restricted meaning to the generic term "judge", used in the constitutional guarantee against unreasonable searches and seizures. Furthermore, in People versus Manantan (L-14129, July 31, 1962, 5 SCRA 684), a justice of the peace, accuse of violating Section 54 of the Revised Election Code, moved to dismiss the information on the ground that the law refers merely to a justice, judge, or fiscal and that being a justice of the peace, he is beyond the coverage of the said Code. The Supreme Court in denying such contention, held that there was no need of including justices of the peace in the enumeration in said section because the legislature had availed itself of the more generic term "judge". The term "judge", not modified by any word or phrase, is intended to comprehend all kinds of judges, including justices of the peace. The cases of People versus Paderna (22 SCRA 273) and Paraguya versus Tiro (41 SCRA 137) involved not the power of the Circuit Criminal Court to conduct preliminary investigation, but its jurisdiction to try and decide certain They do not at all reveal an iota of any further restriction on the limited jurisdiction of the Circuit Criminal Court other than those delineated in existing laws. Thus, in the Paderna case, supra, involving a violation of Section 174 of the Tax Code, Mr. Chief Justice Castro, then Associate Justice, speaking for the Supreme Court in ruling that the Circuit Criminal Court was without jurisdiction to take cognizance of the case, stated:

Page 58 of 217 ... [T]he charge is for unlawful possession of untaxed "blue seal cigarettes" of an appraised value of less than P500.00 ... and the penalty provided under Republic Act 4713 is a fine of not less than P50.00 nor more than P200.00 and imprisonment of not less than 5 nor more than 30 days because the value of the cigarettes does not exceed P500.00, this case falls within the original and exclusive jurisdiction of the city court. ... ... Section 1 of Republic Act 5179, which took effect on September 8, 1967, provides in part that circuit criminal courts shall have limited jurisdiction concurrent with the regular court of first instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter. xxx xxx xxx The jurisdiction of the circuit criminal courts is thus dependent not only on the type of cases but also on the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and original jurisdiction of the City Court, it cannot, even if it involves a violation of section 174 of the Tax Code, be taken cognizance of by circuit criminal courts, the jurisdiction of which is concurrent with that of courts of first instance where the latter's jurisdiction is original and exclusive. The same ruling was substantially reiterated in the more recent Tiro case, supra, involving indirect bribery committed by a public officer. In passing upon the issue of the Circuit Criminal Court's limited jurisdiction, the Supreme Court, through Mr. Justice Jose B. L. Reyes, held: ... The law (R.A. 5179) confined the jurisdiction of the circuit criminal courts (which is even made concurrent with the courts of first instance) to crimes committed by public officers; ... only where they are falling within the original and exclusive jurisdiction of the court of first instance. In short, circuit criminal courts' jurisdiction was limited merely to cases involving crimes specifically enumerated in Section 1 of Republic Act 5179, for which the penalty prescribed by law is imprisonment for more than 3 year (or 6 years in proper cases), or fine of more than 3 years (or 6 years in proper cases), or fine of more than P3,00.00 (or P6,000.00 as the case may be), or both such fine and imprisonment (sec. 44[f] in relation to Sec. 87[c], Judiciary Act of 1948, as amended; Esperat vs. Avila, L25922, June 30, 1967, 20 SCRA 596; Mangila vs. Lantin, L-24735, October 31, 1969, 30 SCRA 81; People vs. Tapayan , L-36885, November 28, 1969, 30 SCRA 529; Andico vs. Roan, L-26563, April 16, 1968, 23 SCRA 93). Since indirect bribery is penalized under the Revised Penal Code with imprisonment for a period not exceeding six months, suspension and public censure (Art. 211, RPC), the case is clearly removed from the competence of the circuit criminal court to pass upon. It is not denied that the crime of indirect bribery is essentially one committed by public officers. Jurisdiction of the court, however, is determined not only by nature of the offense charged in the information, but also by the penalty imposable thereto. ... (emphasis supplied). In these two cases, it was made clear that for the Circuit Criminal Court to acquire jurisdiction, the offense must not only be one of those enumerated under Section 1 of Republic Act No. 5179; it should also be within the original and exclusive jurisdiction of the regular Courts of First Instance. In the aforesaid cases, the Circuit Criminal Court was clearly without jurisdiction to hear and decide the offenses involved, by command of the specific provisions of its charter, the Judiciary Act and the Revised Penal code; and not by a directive of the Supreme Court, which merely applied in said cited cases the statutory prescriptions. The Supreme Court cannot legally define additional restrictions, which is the sole prerogative of the law-making authority. The contrary view appears to entertain the mistaken notion that Section 13, Rule 112 of the Revised Rules of Court, being a rule of procedure, the same should be rendered inoperative by reason of the fact that the Supreme Court cannot, by promulgating a rule of procedure, arrogate jurisdiction unto itself or grant any to the lower courts. It is of course basic that only the Constitution and the law can confer jurisdiction to hear and decide certain cases. But equally true is the fact that both the 1935 and 1973 Constitutions expressly delegated to the Supreme Court the rule-making authority the power to promulgate rules of pleading, practice and procedure and to amend the existing laws thereon. The law or rule of preliminary investigation is undoubtedly a rule of procedure. The 1935 Constitution states: The Supreme court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be inform for all courts of the same grade and shall not diminish, increase or modify, substantive rights. The existing laws on pleading, practice, and substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines (Sec. 13, Art. VIII, 1935 Constitution). The 1973 Constitution similarly authorizes the Supreme Court to

Page 59 of 217 Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repeated, altered, or supplemented by the National Assembly. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade. and shall not diminish, increase or modify substantive rights (Sec. 5[5], Art, X, 1973 Constitution). Sections 13 and 14 of Rule 112 of the Revised Rules of Court merely implement Section 3 of Article Ill of the 1935 Constitution (now Section 3 of Article IV of the 1973 Constitution). Section 13 of Rule 112 of the Revised Rules of Court was not an innovation as it merely restated Section 13 of General Order No. 58, Section 37 of Act No. 1627, and Sections 2 and 4 of Rule 108 of the 1940 Rules of Court, in obedience to its rule-making authority under Section 13, Article VIII of the 1935 Constitution. Rule 112 does not modify substantive rights but continues the procedure already operative prior to the 1935 Constitution. WE have ruled that Rule 108 of the 1940 Rules of Court, which is the predecessor of Rule 112 of the 1964 Revised Rules of Court, is an adjective or procedural rule (Bustos vs. Lucero, 81 Phil. 640). While admitting that Court of First Instance were previously clothed with the power of preliminary investigation by virtue of Section 37 of Act 1627, nevertheless, it is argued that this same section was amended when the Judiciary Act of 1948 was enacted since under Section 99 of said Judiciary Act, "All laws and rules inconsistent with the provisions of this Act' were repealed. the inconsistency, it is claimed, lies in the fact that while the authority of municipal courts and city courts to conduct preliminary investigation was reiterated in said Judiciary Act, there was no mention therein whether Courts of First Instance Judges are still possessed of such authority. If such repeal was intended, it is unconstitutional; because the Constitutions of 1935 and 1973 vest in the Judge the power to issue a warrant of arrest or search warrant after conducting a preliminary investigation or examination. Congress could not divest the court of such authority as the Constitution does not permit it, for the constitutional guarantee on arrest or search warrant is not qualified by some such phrase as "unless otherwise provided by law." For a clearer appreciation, the Constitutional guarantee on arrest and search warrant reads: (3) The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized (Art. III, 1935 Constitution, emphasis supplied). Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the persons or things to be seized (Art. IV, 1973 Constitution, emphasis supplied). It is clear from the aforequoted provisions of the 1973 Constitution that until now only the judge can determine the existence of probable cause and can issue the warrant of arrest. No law or presidential decree has been enacted or promulgated vesting the same authority in a particular "responsible officer." Hence, the 1973 Constitution, which was ratified and took effect on January 17, 1973, should govern the last four cases, namely, Nos. L-36376, L-38688, L-39525 and L-40031, which arose after January 17, 1973. But even under the 1935 Constitution, the term seizures or seized comprehends arrest. Thus, in Vivo versus Montesa (July 29, 1968, 24 SCRA 155), reiterating the doctrines in the cases of Qua Chee Gan, et al. vs. Deportation Board (L-20280, Sept. 30, 1963) and Morano vs. Vivo (L-22196, June 30, 1967, 20 SCRA 162), WE ruled unanimously through Mr. Justice J.B.L. Reyes: Nevertheless, we are of the opinion that the issuance of warrants of arrest by the Commissioners of Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts with paragraph 3, Section 1, of Article III (Bill of Rights) of our Constitution, providing: 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, andparticularly describing the place to be searched, and the persons or things to be seized. (Art. III, 1773 Constitution, emphasis supplied). It will be noted that the power to determine probable cause for warrants of arrest is limited by the Philippine Constitution to judges exclusively, unlike in previous organic laws and the Federal Constitution of the United States that left undetermined which public officials could determine the existence of probable cause. And in Qua Chee Gan, et al. vs. Deportation Board, L-20280, promulgated on September 30, 1963, this Court pointed out that

Page 60 of 217 Executive Order No. 69, of July 29, 1947, issued by President Roxas, in prescribing the procedure for deportation of aliens, only required the filing of a bond by an alien under investigation, but did not authorize his arrest. Discussing the implications of the provision of our Bill of Rights on the issuance of administrative warrants of arrest, this Court said in the same case: xxx xxx xxx Under the express terms of our Constitution it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in a criminal case and administrative warrants in administrative proceedings. And if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt. The(n) contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when, as already stated, there is already an order of deportation. To carry out the order of deportation, the president obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is enough, as was true before the executive order of President Quirino, that a bond be required to insure the appearance of the alien during the investigation, as was authorized in the executive order of President Roxas. Following the same trend of thought, this Court, in Morano vs. Vivo (L-22196, 30 June 1967, 20 SCRA, 562; Phil. 1967-B, page 741), distinguished between administrative arrest in the execution of a final deportation order and arrest as preliminary to further administrative proceedings. The Court remarked in said case: Section 1 (3), Article Ill of the Constitution, we perceive, does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. The constitutional limitation contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to prosecution or proceedings for a given offense or administrative action, not as a measure indispensable to carry out a valid decision by a competent official, such as a legal order of deportation issued Commissioner of Immigration, in circumstance of legislation (L-24576, pp. 161-1621). The foregoing doctrine was last reiterate in Ang, et al. versus Galang, etc. (L-21426, Oct. 22, 1975). Under the American Constitution, the aforesaid terms include not only arrest but also invitations for police interview or interrogation as well as stop-and-frisk measures. In the 1968 case of Terry versus Ohio, the United States Supreme Court enunciated: ... It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime "arrests" in traditional terminology. It must be recognized that whenever a police officer accounts an individual and restrain his freedom to walk away, he has "seized" that person (392 U.S. 1, 16 88 S.C.T. 1868, 20 L.E.D. 2d 889; 903 [1968].) That the aforesaid terms seizures and seized signify arrest was deliberately intended by the founding fathers of the 1935 Constitution, which words are likewise employed in the 1973 Constitution, Delegate Miguel Cuaderno categorically recounted: An amendment affecting the issuance of an order of arrest and search warrant, to the effect that in each case the order must be supported by the testimony of the complainant and the witnesses he may produce, made before the judge, and also an amendment providing that prisoners charged with capital offenses shall be bailable before conviction unless the evidence of guilt is strong, were approved upon the initiative of Delegates Francisco. It was the prevailing opinion among many delegate that one courts had been rather easy in the issuance of order of arrest or search warrants,and charged with capital offenses (Cuaderno, the Framing of the Philippine Constitution, p. 65, Emphasis supplied). Delegate Jose Aruego added:

Page 61 of 217 During the debates on the draft, Delegate Francisco proposed an amendment being the insertion of the words, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The Idea in the Francisco amendment was not new in the Philippines; for it was provided for in the Code of Criminal Procedure of the Philippines. The signification of the Idea into a constitutional provision was zealously insisted upon, in order to make the principle more sacred to the judges and to prosecuting pointed out in the debates, causes by the issuance of search warrants, which were generally found afterwards to be false (Aruego, Framing of the Philippine Constitution, Vol. I, p.160). The term "judge" employed in both Constitutions cannot be so limited to "municipal judge" as to exclude the judge of the Court of First Instance and Circuit Criminal Court (People vs. Manantan, 5 SCRA 684, 690-695). WE are not justified to create a distinction where the Constitution does not make any. In general, "judge" is a term employed to designate a public officer selected to preside and to administer the law in a court of justice (Ark. School Dist. No. 18 vs. Grubbs Special School Dist., 43 S.W. 2d 765, 766, 184 Ark. 863, 48 CJS 946). According to intent or context, the term "judge" may include an assistant judge (N.H. City Bank v. Young, 43 N.H. 457); a country or court justice (Mo. State v. O'Gorman, 75 Mo. 370); a justice of the peace (N.Y. People v. Mann 97 N.Y. 530, 49 Am. R.556). The term "a judge", in Gen. St. C. 47, Art. 1 & 22, providing that "a judge" may cause any house or building to be searched for the protection of gambling tables, etc., is equivalent to "any judge" and comprehends an entire class, and cannot, without disturbing its meaning, be restricted in its applications to judges of county, city and police courts and therefore the judge of the Louisville Law and equity court has authority to issue a warrant for such a research (Com. v. Watzel, 2 S.W. 123, 125, 84 KY 537). Admittedly, Section 99 of the Judiciary Act contains a repealing clause which provides: "All laws and rules inconsistent with the provisions of this Act are hereby repealed." The question may now be asked: What is the nature of this repealing clause? It is certainly not an express repealing clause because it fails to Identify or designate the Act or Acts that are intended to be repealed (Sutherland, Statutory Construction, [1934], Vol. 1, p. 467). Rather, it is a clause which predicates the intended repeal upon the condition that a substantial and an irreconcilable conflict must be found in existing and prior Acts. Such being the case, the presumption against implied repeals and the rule against strict construction regarding implied repeals apply ex propio vigore, for repeals and amendments by implication are not favored (Jalandoni vs. Andaya, L-23894, Jan. 24, 1974, 55 SCRA 261, 265-6; Villegas vs. Subido, L-31711, Sept. 30, 1971, 41 SCRA 190; Quimseng vs. Lachica, 2 SCRA 182). Indeed, the legislature is presumed to know the existing laws; so that, if a repeal is intended, the proper step is to so express it with specificity (Continental Insurance Co. vs. Simpson, 8 F[2d] 439; Webb vs. Bailey, 151 Ore. 2188, 51 P[2d] 832; State vs. Jackson, 120 W. Va. 521, 199 S.E. 876). The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law (Crawford, Construction of Statute, 1940 ed., p. 631), unless an irreconcilable inconsistency and repugnancy exist between the terms of the new and of the old statutes (Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377). Here, there is no such inconsistency. To begin with, the two laws, although with a common objective, refer to different persons and different methods applicable under different circumstances. Thus, while Section 87 of the Judiciary Act provides that municipal judges and judges of city courts may also conduct preliminary investigation for arty offense alleged to have been committed within their respective municipalities and cities ... ; Section 37 of Act 1627 reads in part that such power of "every justice of the peace including the justice of Manila, ... shall not exclude the proper judge of the Court of First Instance ... from exercising such jurisdiction." WE should not, and cannot, adopt the theory of implied repeal except upon a clear and unequivocal expression of the will of Congress, which is not manifest from the language of Section 99 of the Judiciary Act, apart from the fact that Congress by itself alone had no power to amend the Constitution. The opposite view likewise denies that the jurisdiction of our courts to conduct preliminary investigation could be traced to the Constitution, adding that the Charter of Manila and other cities confer upon the respective fiscals of said cities the power to conduct preliminary investigations. The organic acts prior to the 1935 Constitution did not prohibit the conferment of such a power to conduct preliminary examination or investigation on quasi-judicial officers like the city fiscals of chartered cities (see the instructions of President McKinley to First Philippine Commission, the Philippine Bill of 1902, Jones Law of 1916, and the Revised Administrative Code of 1917). But the power thus granted to the Manila City Fiscals (and later to City Fiscals and City Attorneys of other chartered cities) to conduct preliminary investigations did not and does not include the authority to issue warrants of arrest and search warrants, which warrants the courts alone can issue then as now. The constitutional guarantee against unreasonable searches and seizures under the 1935 Constitution provides that only a judge can issue a search warrant or warrant of arrest after he has by himself personally determined the existence of probable cause upon his examination under oath of the complainant and his witnesses; although as ruled in one case, he may rely on the investigation conducted by the fiscal or prosecutor (Amarga vs. Abbas, 98 Phil. 739, 741-42). It is patent that under the 1935 Constitution, only the "judge" is directed to conduct a preliminary examination for the issuance of the warrant of arrest by express constitutional conferment.

Page 62 of 217 But the 1973 Constitution empowers the National Assembly to grant the power to issue search warrants or warrants of arrest after conducting the necessary preliminary examination to "other responsible officer." Until such a law is enacted by the National Assembly, only the judge can validly conduct a preliminary examination for the issuance of a warrant of arrest or search warrant. Even when the fiscal or prosecutor conducts the preliminary investigation, only the judge can validly issue the warrant of arrest. This is confirmed by Section 6 of Rule 112 of the 1964 Revised Rules of Court, which directs the judge to issue the warrant of arrest when he is "satisfied from the preliminary. examination conducted by him or by the investigating officer (referring to the fiscal or the municipal mayor under Sec. 5) that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, ... ." Thus, the power of the city prosecutors to conduct preliminary examination and investigation (minus the authority to issue warrants of arrest or search warrant) is purely statutory. On the other hand, the judge derives his authority not only from the Rules of Court, but also and originally from the fundamental law to which all other laws are subordinate. If an objection must be raised, it should be against the authority of the fiscal to exercise such power of preliminary investigation, which, as has been stated, is merely statutory. No less than the Constitution confers upon the judge the power to conduct such examination and investigation. The case of Albano versus Alvarez (December 22, 1965, 15 SCRA 518) is authority for the proposition that Sec. 13 of Rule 112 of the 1964 Revised Rules of Court contains an innovation, which requires that, when the Court of First Instance itself conducts the preliminary investigation, it must not only conduct the preliminary examination proper but the preliminary investigation as well since Section 13 commands the Court of First Instance to conduct both the preliminary examination and investigation simultaneously (523-524). Said Albano case does not negate but recognizes the authority of the judge of the Court of First Instance to conduct such preliminary investigation. It is true that this COURT held expressly and impliedly that under the charters of the cities of Manila, Bacolod and Cebu, the power to conduct preliminary investigation is exclusively lodged in the city prosecutor (Sayo vs. Chief of Police, 80 Phil. 859, 868-869, May 12, 1948; Espiritu vs. De la Rosa, 45 OG 196; Montelibano vs. Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18 SCRA 280, 285-286, Sept. 30, 1966). But the charters of the cities of Manila, Bacolod and Cebu do not contain any provision making such grant of power to city prosecutors exclusive of the courts (Kapunan, Criminal Procedure, 3rd Edition, 1960), which cannot be deprived of such authority to conduct preliminary examination because said prerogative of the courts emanates from the Constitution itself. Unless the Constitution is amended, the judge cannot be divested of such a power, which is an essential element of the cardinal right of an individual against unreasonable searches and seizures. If the present city charters conferred on city fiscals or city prosecutors the power to issue warrants of arrest it would be an unconstitutional grant of power under the 1935 Constitution. As heretofore intimated, the present practice or rule of court authorizing the judge to issue warrants of arrest based on the preliminary investigation conducted by the city fiscal, seems to violate the 1935 Constitution, which requires the judge himself to conduct the preliminary examination. Neither the judge nor the law can delegate such an authority to another public officer without trenching upon this constitutional guarantee against unreasonable searches and seizures. The theory that Courts of First Instance and Circuit Criminal Courts Judges cannot exercise the power of preliminary examination and investigation, and that as a necessary consequence, they cannot also issue warrants of arrest, obviously collides with the 1935 and 1973 Constitutions. Moreover, the theory tolerates an unthinkable because anomalous situation wherein the Court of First Instance and the Circuit Criminal Court must wait for prosecutors and courts inferior to them to conduct the preliminary examination and/or to issue the needed warrants of arrest before they could effectively exercise their power to try and decide the cases falling under their respective jurisdiction. This situation would make the Courts of First Instance and Circuit Criminal Courts totally dependent upon state prosecutors and municipal courts, which are inferior to them, for their proper functioning. The possibility that the administration of criminal justice might stand still will not be very remote. The two-fold purpose for which the Circuit Criminal Courts were created was to alleviate the burden of the regular Courts of First Instance and accelerate the disposition of criminal cases filed therein (Osmea vs. Secretary of Justice, supra; People vs. Gutierrez, supra). Such being the admitted purpose, the power to conduct preliminary examination must necessarily attach to the duties of a Circuit Criminal Court Judge; for aside from being one of the instruments by which a case may be accelerated and disposed of, it is a duty which trully lies within the scope of the office, essential to the accomplishment of the main purpose for which the office was created (Sec. 3, Art III, 1935 Constitution; Sec 3, Art. IV, 1973 Constitution), even if regarded as incidental and collateral, is germane to and serves to promote the accomplishment of the principal purpose (Lo Cham vs. Ocampo, 77 Phil. 635). WE RULE that both Section 1(3), Article III of the 1935 Constitution provide the source of the power of all Judges, including Judges of the Court of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank, to conduct the examination to determine probable cause before the issuance of the warrant of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of the corresponding information. II It may be well to trace briefly the historical background of our law on criminal procedure.

Page 63 of 217 During the Spanish regime, the rules of criminal procedure were found in the Provisional Law on Criminal Procedure which accompanied the Spanish Penal Code. The two laws were published in the Official Gazette in Manila on March 13 and 14, 1887 and became effective four (4) months thereafter(U.S. vs. Tamparong, 31 Phil. 32-33; Francisco, Criminal Procedure, 1969, ed., p. 8). While the Provisional Law on Criminal Procedure provided or governadorcillo, it did not require any preliminary examination or investigation before trial. The sumario was abolished by General Order No. 58 (U.S. vs. Tamparong, supra; Navarro, Criminal Procedure, 1960 ed., pp. 171, 174; Revilla, Vol. 2. Philippine Penal Code and Procedure, 1930 ed., pp. 1134-35). When the Philippine came under American sovereignty General Order No. 58 was promulgated by the U.S. Military Governor in the exercise of his legislative powers as commander-in-chief of the occupation army and took effect on April 13, 1900. General Order No. 58 was amended by Act No. 194 of August 10, 1901, the Philippine Bill of 1902, Act No. 590 of January 9, 1903, Act No. 1627 of July 1, 1907, the Jones Law of 1916, Section 2474 of the Revised Administrative Code of 1917, Act No. 3042 of March 10, 1922, and Act No. 4178 of December 5, 1934. General Order No. 58 amended (Sec.1) the Criminal Code of Procedure enforced during the Spanish regime and vested in the magistrate "the authority to conduct preliminary investigation (Sec. 13) for the issuance of the warrant of arrest" and authorized "a judge or a justice of the peace" to issue a search warrant upon his determination of the existence of probable cause therefor "particularly describing the place to be searched and the person or thing to be seized" (Secs. 95 and 97). The term "magistrate" comprehended the court of First Instance (Temporosa vs. Yatco, 79 Phil. 225, 226 [1947]; Marcos vs. Cruz, 68 Phil. 96, 104-107 [1939]; People vs. Red, 55 Phil. 706, 710 [1931]; People vs. Solon, 47 Phil. 443 441 [1925]; Navarro Criminal Procedure, 960 ed., 1973; Padilla, Criminal Procedure, 1965 ed., p. 270). A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with a public offense. People vs. Swain, 90 P. 720, 722 5 Cal. App. 421 citing Pen. Code, S807. A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime. The arrest of a person charge with the commission of a crime. The following persons are magistrates: (1) the justices of the Supreme Court; (2) the judges of the Circuit Court; (3) the county judges and justices of the peace; (4) all municipal officers authorized to exercise the power and perform the duties of a justice of the peace. Wallowa County v. Oakes, 78 P. 892, 46 Or. 33 (26 Words and Phrases, pp. 44, 45). Act No. 194 of August 10, 1901 amended General Order No. 58 by empowering "every justice of the peace ... to make preliminary investigation of any crime allege to have been committed within his municipality, jurisdiction to hear and determine which is by law now vested in the judges of the Courts of First Instance" (emphasis supplied). The obvious inference from the aforequoted provision of Act No. 194 is that before its passage, the justice of the peace had no power to conduct preliminary investigation of any offense triable by the Court of First Instance, which alone can conduct such preliminary investigation of a crime under its original jurisdiction pursuant to General Order No. 58. But its enactment did not divest the Court of First Instance of such authority. In the 1939 case of Marcos, et al. versus Cruz, the Supreme Court, through Justice Imperial, sustained the power of the Court of First Instance to conduct preliminary investigations under Sections 13 and 14 of General Order No. 58 (68 Phil. 96, 106-107), which was impliedly followed in the 1947 case of Temporosa versus Yatco, et al., supra. While General Order No. 58 vested the authority in a magistrate, a generic term which includes judges of the Courts of First Instance and justices of the peace; Section 1 of Act No. 194 is less categorical by employing the clause "jurisdiction to hear and determine which is by law now vested in the judges of the Courts of First Instance." The Philippine Bill of 1902 in a similar ambiguous vein contained such authority when it merely provided that the "Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by the Government of said Islands, subject to the power of said Government to change the practice and method of procedure. The municipal courts of said Islands shall possess and exercise jurisdiction as heretofore provided by the Philippine Commission, subject in all matters to such alteration and amendment as maybe hereafter enacted by law; ... " (Sec. 9, emphasis supplied). Act No. 590 of January 9, 1903 further amended Act No. 194 by extending the power to conduct preliminary investigation to the justice of the peace of the provincial capital or of the town wherein the provincial jail is situated of crimes committed anywhere within the province but again utilized the equivocal clause "jurisdiction to hear and determine which is by law now vested in the Court's of First Instance; ... (Sec. 7, Act 590, emphasis supplied).

Page 64 of 217 Act No. 1627 of July 1 1907 had the virtue of greater clarity when if authorized expressly every justice of the peace, including the justice of the peace of Manila, to "conduct preliminary investigation of all crimes and offenses alleged to have been comitted within his municipality and cognizable by Court of First Instance, but this shall not exclude the proper judge of the Court of First Instance of a municipal court from or of a municipality in which the provincial jail is located, when directed by an order from the judge of First Instance, shall have jurisdiction to conduct investigation at the expense of the municipality wherein the crime or offense was committed although alleged to have been committed anywhere within the province, to issue orders of arrest, ... (Sec. 37, Act No. 1627, emphasis supplied). The Jones Law of 1916, like the Philippine Bill of 1902, merely provides "that the Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisidiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law" (Sec. 26, Jones Law). Section 2474 of the Revised Administrative Code of 1917 re-affirms the power of the Court of First Instance of Manila to conduct preliminary examination Sec. 2474. Persons arrested to be promptly brought before a court. Preliminary examination in municipal court and Court of First Instance. Every person arrested shall, without unnecessary delay, be brought before the municipal court, or the Court of First Instance for preliminary hearing,release on bail, or trial. In cases triable in the municipal court the defendant shall not be entitled as of right to a preliminary examination, except a summary one to enable the court to fix the bail, in any case where the prosecution announces itself and is ready for trial within three days, not including Sundays, after the request for an examination is presented. In cases triable only in the Court of First Instance the defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the city, after a due investigating of the facts, shall have presented an information against him in proper form. But the Court of Firs Instance may make such summary investigation into the case as it may necessary to enable it to fix the bail or to determine whether the offense is bailable. (emphasis supplied). It is clear that both the Manila Court of First Instance and municipal court can conduct a preliminary hearing or examination. Section 2474 aforequoted, adds, however, that the City Fiscal impliedly may conduct such preliminary examination; because it provides that in "cases triable only in the Court of First Instance the defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the city, after a due investigation of the facts, shall have presented an information against him in proper form. It will be noted, however, that it is only after the City Fiscal has conducted a preliminary examination that the accused ceases to "be entitled as of right" to a preliminary examination by the Judge of the Court of Firs Instance who, however, retains inferentially the discretion to conduct another preliminary investigation because the Court of First Instance Judge is not foreclosed by the preliminary examination conducted by the City Fiscal. But, when the City Fiscal has not conducted any preliminary examination, the Court of First Instance Judge himself certainly can proceed with such preliminary examination, which the defendant can demand as a matter of right. Act No. 3042 of March 10, 1922, while amending Section 13 of General Order No. 58, re-states the power of the magistrate to conduct the preliminary examination for the issuance of the warrant of arrest. Act No. 4178 of December 5, 1934 further amended Section 13 of General Order No. 58 but still retained the authority of the magistrate to conduct the preliminary examination. As herefofore stated, Sections 13 and 14 of General Order No. 58, as amended, were applied by the Supreme Court in Marcos, et al. versus Cruz (68 Phil. 96, 106-107). Under the jurisprudence then or prior to the 1935 Constitution, the preliminary investigation before the justice of the peace or muncipal court consisted of two stages, namely, preliminary examination for the issuance of the warrant of arrest where only the complainant and his witnesses are heard by the justice of the peace; and the second stage where the accused and his witnesses are heard. The Judge of the Court of First Instance conducts only the first stage, that is, preliminary examination for purposes of the issuance of the warrant of arrest, to be followed by the actual trial (Marcos, vs. Cruz, supra; People vs. Moreno, 77 Phil. 548, 555 [1946]). The basic source of the power of the Courts of First Instance to conduct preliminary examination or investigation from May 14, 1935 to January 17, 1973, is paragraph 3 of Section 1 of Article III of the 1935 Constitution, which guarantees "the right of the people to be secure in their persons ... against unreasonable ... seizures ... and no warrants shall issue but upon probable cause, to be determined by the judge after an examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing ... the persons ... to be seized." Construing the foregoing constitutional right against unreasonable searches and seizures, the Supreme Court, through then Chief Justice Ricardo Paras, pronounced that the determination of the existence of "probable cause must depend upon the judgment and discretion of the judge ... issuing the warrant. ... His conclusion as to whether "probable cause" existed or not is final and conclusive. If he is satisfied that "probable cause" exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to issue a warrant of arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. ... There is no law which prohibits him from reaching the conclusion that "probable cause" exists from the statement of the prosecuting attorney alone, or any other person whose statement or affidavit is entitled to credit in the opinion of the judge ... The preliminary investigation conducted by the petitioner (Provincial Fiscal) under Republic Act No. 732 ... does not, as correctly contended by the respondent Judge, dispense with the latter's duty to exercise his judicial power of determining, before issuing the corresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such power in the respondent judge who, however, may rely on the facts stated in the prosecuting attorney" (Amarga vs. Abbas, March 28, 195l, 98 Phil. 739, 741-742).

Page 65 of 217 While the power to conduct preliminary examination may be delegated by law to government prosecutors, only the judge can issue the warrant of arrest under the 1935 Constitution and prior thereto (Sayo, et al. vs. Chief of Police, et al. 80 Phil. 859; Lino vs. Fugoso, 77 Phil. 933; Hashim vs. Boncan, 71 Phil. 216). The valid seizure of a person can only be executed through a lawful warrant of arrest. Arrest without a warrant can only be legally effected by a police officer or private individual a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; b) when an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; and c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 6, Rule 113, 1964 Revised Rules of Court). In all other cases, there must be a valid warrant of arrest. When the seizure of a person is made without a warrant of arrest or with a warrant of arrest which is not based on a determination by the judge of the existence of probable cause, the arrest becomes unreasonable and therefore unconstitutional. Sections 2 and 4 of Rule 108 of the 1940 Rules of Court expressly confer on the municipal or city judge, the City Final and the Judge of the Court of First Instance the power to conduct preliminary examination or investigation. On June 20, 1957, Republic Act No. 1700, otherwise known as the Anti-Subversion Law, was approved. The proviso of Section 5 thereof expressly provides that the preliminary investigation of offenses defined and penalized therein by prision mayor to death shall be conducted by the proper Court of First Instance. This grant obviously is exclusive of the provincial or city fiscal or other government prosecutors whose power to conduct preliminary investigation in all other cases is affirmed in the first clause of Section 5 thereof. Sections 13 and 14 of the 196.4 Revised Rules of Court re-state Sections 2 and 4 of Rule 108 of the 1940 Rules of Court. As aforestated, aside from the challenged Sections 3 and 6 of Republic Act No. 5179 creating the Circuit Criminal Courts, Republic Act 5180 was approved on September 8, 1967, which affirms the prerogative of the Courts of First Instance to conduct preliminary investigation of offenses punishable by said courts. Presidential Decrees Nos. 77 and 911 promulgated respectively on December 6, 1972 and March 23, 1976. amending Republic Act No. 5180, did not modify the opening clause of Section 1 of said Republic Act 5180 affirming the power of the Court of First Instance to conduct preliminary investigation in accordance with law and the Rules of Court. Section 234 of the 1971 Revised Election Code, otherwise known as Republic Act No. 6388, vests in the Court of First Instance "exclusive original jurisdiction to make preliminary investigations, issue warrants of arrest and try and decide any criminal case or proceeding for violation of" the Election Law. This provision was a reiteration of the previous election laws (Act No. 1582 of 1907; Com. Act No. 357 of 1938; and Republic Act No. 180 of 1947, as amended). After the ratification of the 1973 Constitution on January 17, 1973, the source of the authority of the judge to conduct preliminary examination for purposes of issuing a warrant of arrest, is still the Constitution, this time the 1973 Constitution, which likewise guarantees "the right of the people to be secure in their persons ... against unreasonable ... seizures for whatever nature and for any purpose ... and no search warrant or warrant of arrestshall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing ... the persons ... to be seized" (Sec. 3 of Art. IV, 1973 Constitution). The 1973 Constitution, instead of employing the generic term warrants to comprehend both search warrants and warrants of arrest, as did the 1935 Constitution, expressly specifies "search warrants or warrants of arrest." The purpose of such specification was apparently to clarify the doubt raised by the dissenting opinion of Mr. Justice Montemayor in the Amarrga case, supra, that the 1935 Constitution merely guarantees against unreasonable searches but not against unreasonable arrests, despite the fact that the constitutional guarantee expressly affirms "the right of the people to be secure in their persons ... against unreasonable ... seizures ... and no warrant shall issue but upon probable cause, to be determined by the persons ... to be seized" (Par. 3, See. 1, Art. III, 1935 Constitution). In passing, the dissent of Justice Montemayor in the Amarga case seems to deny equal, if not greater, importance to individual freedom from illegal arrest or arbitrary detention vis-a-vis property rights and right against self-incrimination. It will also likewise be noted that the 1973 Constitution also authorizes the law-making authority to empower other responsible officers to conduct such preliminary examination for purposes of the issuance of a warrant of arrest. As enunciated in the Amarga case and in U.S. versus Ocampo (18 Phil. 1, 41-42), the government prosecutors may be authorized to conduct such preliminary examination and their determination of the existence of probable cause may be relied upon by the , 23 SCRA judge, who may, as a consequence, issue the warrant of arrest; although the judge himself is not precluded from conducting his own preliminary examination despite the conclusion of the prosecuting attorney as to the existence or non-existence of probable cause. III 1. The challenged order of July 6, 1971 issued by the respondent Judge in G.R. No. L-34038 (Collector of Customs, etc. vs. Hon. Onofre Villaluz, et al.) dismissed the criminal complaint filed by petitioners therein against private respondent with prejudice,

Page 66 of 217 obviously meaning that the case may not be refiled without exposing the accused to double jeopardy. The respondent Judge seriously erred in so issuing said order, contravening as it does a basic legal principle on double jeopardy, and committing thereby a grave abuse of discretion. The constitutional right against double jeopardy exists, not after the first preliminary examination or investigation, but only after the first trial which results either in conviction or acquittal or in the dismissal or termination of the case without the express consent of the accused by a court of competent jurisdiction upon a valid complaint or information and after the accused had pleaded to the charge (Sec. 9, Rule 117, Revised Rules of Court; Taladua vs. Ochotorena, et al. L-25595, February 15, 1974; Republic vs. Agoncillo, L-27257, August 31, 1971, 40 SCRA 579; People vs. Obsania, L-24447, June 29, 1968, 23 SCRA 1249; People vs. Ylagan, 58 Phil. 851). As correctly stated by the Solicitor General, petitioner's counsel, "dismissal at preliminary investigation is never with prejudice. Refiling of the same is allowed if evidence has become sufficient to warrant conviction of private respondent." There has been no deviation from such established jurisprudence exemplified in People vs. Bagsican(6 SCRA 400), Wherein the Court held that "the finding in the preliminary investigation that no prima facie case existed against the accused does not bar subsequent prosecution and conviction. Such finding is not final acquittal as would preclude further proceedings" (Emphasis supplied). 2. Aggravating his grave mistake and misapprehension of the law, respondent Judge also directed through the same order the return of the articles allegedly seized from the person of respondent Makapugay. This portion of the question order is fraught with undesirable consequences. As stated heretofore, the dismissal of a case, even with prejudice, during the stage of preliminary investigation does not bar subsequent prosecution and conviction if the evidence warrants the re-filing of the same becomes next to impossible. For the enforcement of such order would virtually deprive herein petitioner Collector of Customs of the evidence indispensable to a successful prosecution of the case against the private respondent. Worse, the order nullified the power of seizure of the customs official. Respondent Judge ignored the established principle that from the moment imported goods are actually in the possession or control of the Customs authorities, even if no warrant of seizure had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings, the Bureau of Customs acquires exclusive jurisdiction over such imported goods for the purpose of enforcing the Customs laws, subject to an appeal only to the Court of Tax Appeals and to final review by the Supreme Court (Section 2205 and 2303, Tariff and Customs Code; Papa, et al. vs. Mago, et al., Feb. 28, 1968, 22 SCRA 857; Virata, et al. vs. Aquino, et al. Sept 30, 1973, 53 SCRA, 24; see also Vierneza vs. Commissioner, July 30, 1968, 24 SCRA 394; Farm Implement & Machinery vs. Commissioner, August 30, 1968, 24 SCRA 905; Lazatin vs. Commissioner, et al., July 30, 1969, SCRA 1016; Asaali, et al. vs. Commissioner, December 16, 1968, 26 SCRA 382; Sare Enterprises vs. Commissioner, Aug. 28, 1969, 29 SCRA 112; Geotina, etc. vs. Court of Tax Appeals, et al., August 30, 1971, 40 SCRA 362; Commissioner vs. Court of Tax Appeals, et al., January 31, 1972; Lopez vs. Commissioner, et al., January 30, 1971, 37 SCRA 327; Geotina vs. Broadway, etc., et al., January 30, 1971, 37, SCRA 410; Auyong Hian vs. Court of Tax Appeals, et al., September 12, 1974, 59 SCRA 110; and Pacis, et al., vs. Pamaran, etc., et al., March 15, 1974, 56 SCRA 16). Such exclusive jurisdiction precludes the Court of First Instance as well as the Circuit Criminal Court from assuming cognizance of the subject matter (Enrile, et al. vs. Venuya, et al., January 30, 1971, 37 SCRA 381) and divests such courts of the prerogative to replevin properties subject to seizure and forfeiture proceedings for violation of the Tariff and Customs Code (Diosamito, et al. vs. Balanque, et al., July 28, 1969, 28 SCRA 836; Seares vs. Frias, June 10, 1971, 39 SCRA 533); because proceedings for the forfeiture of goods illegally imported are not criminal in nature since they do not result in the conviction of wrongdoer nor in the imposition upon him of a penalty (Lazatin vs. Commissioner, et al., July 30, 1969, 28 SCRA 1016). Respondent Judge claims that the pendency of a seizure proceeding was never brought to his attention (p. 038, rec.) and that he could not have foreseen the possibility that petitioner would be instituting seizure proceedings ... and besides, it is understood that the order of the court commanding the release of the subject articles was on a premise that herein petitioner was not holding or withholding the same for some other lawful reason (p.39, rec.). The questioned order of respondent Judge is unqualified and contains no intimation that the "release ... was on a premise that herein petitioner was not holding or withholding the same for some other lawful reason." On the contrary, the tenor of the order is so absolute and so emphatic that it really leaves no alternative for petitioner Collector of Customs except to return the articles. The records of the case, moreover, reveal that a report of seizure (p. 14, rec.) and warrant of seizure and detention (p. 15, rec.) were made by petitioner Collector of Customs on June 30, 1971 and on July 9, 1971 respectively. It is patent that respondent Judge knew actually of the existence at least of the report of seizure of June 30, 1971, which is six days prior to his order of dismissal dated July 6, 1971. He should have anticipated that a warrant of seizure and detention will logically be issued as in fact it was issued on July 9, 1971, because it was the petitioner Collector of Customs who filed the criminal complaint directly with him on July 1, 1971. Respondent Judge chose to ignore the presence of the report of seizure dated June 30, 1971, six days before his order of dismissal and the filing of the criminal complaint on July 1, 1971. Prudence should have counselled him, so as not to frustrate the petitioner Collector of Customs in enforcing the tariff and customs laws, against ordering the release of the seized articles without first ascertaining from the petitioner Collector of Customs whether the latter intended to institute or had instituted seizure proceedings. As aptly expressed by Mr. Justice Barredo in his Concurring Opinion in People vs. Gutierrez, supra, "It is not enough that a judge trusts himself or can be trusted as capable of acting in good faith, it is equally important that no circumstance attendant to the proceedings should mar that quality of trust worthiness." We have enjoined judges to apply the law as interpreted by the Supreme Court and not to dispose of a case according to their personal views (Albert vs. Court of First Instance, 23 SCRA 948).

Page 67 of 217 IV In G.R. No. L-36376 (Enriquez, et al. vs. Hon. Onofre Villaluz, et al.), the arbitrary denials displayed by respondent Judge of motions presented before him likewise invite some cautionary reminders from this Court. In this case, petitioners were given an unreasonable period of one (1) day within which to elevate the matter before this Tribunal. But considering the novelty of the issue, a grant of twenty-four hours to prepare a petition for certiorari is a virtual denial of the motion. And petitioners' motion for an extension of at least one (1) day was peremptorily brushed aside by respondent Judge with one single word DENIED. The fact that petitioners succeeded in bringing the matter before the Supreme Court within the constricted period of time granted them is beside the point. More important is the consideration by this Court of the dangers posed by respondent Judge's peremptory denial of a reasonable time. Indeed, it is commendable to see judges hasten the disposition of cases pending before them. But more commendable would be for judges to contribute their share in maintaining the unswerving faith of litigants in the courts of justice. WE once again stress that "One important judicial norm is that a judge's official conduct should be free from appearance of impropriety" (Luque vs. Kayanan, 29 SCRA 165). V But while w sustain the power of the Circuit Criminal to conduct preliminary examination (p. 36), pursuant to OUR constitutional power of administrative supervision over all courts (Sec. 6, Art. X, 1973 Constitution) as a matter of policy, WE enjoin the respondent Judge and other Circuit Criminal Court Judges to concentrate on hearing and deciding criminal cases filed before their courts (see Mateo vs. Villaluz, 50 SCRA 18, 28-29, March 31, 1973). The primary purpose of the creation of the Circuit Criminal Courts in addition to the existing Courts of First Instance, as above intimated, is to mitigate the case load of the Courts of First Instance as well as to expedite the disposition of criminal cases involving serious offenses specified in Section I of Republic Act 5179, as amended. Circuit Criminal Judges therefore, should not encumber themselves with the preliminary examination and investigation of criminal complaints, which they should refer to the municipal judge or provincial or city fiscal, who in turn can utilize the assistance of the state prosecutor to conduct such preliminary examination and investigation. Or the Judge of the Circuit Criminal Court can directly request the Secretary of Justice to assign a state prosecutor for the same purpose (See. 3, Republic Act No. 5184). Moreover, it seems that respondent Judge does not have adequate time to hear and dispose of the 34 criminal cases with detention prisoners pending in his sala, aside from the 479 pending cases of voluntary submission by drug addicts, as of January 31, 1975 (A.M. No. 230-CCC, Item 42, Agenda of March 13, 1975), as revealed by his letter dated February 26, 1975, wherein he requested the Supreme Court to renew the detail in his sala of Municipal Judge Hermenegildo C. Cruz of Mandaluyong, Rizal, to assist him. This significant fact should further dissuade him from actively conducting the preliminary investigation of criminal cases directly filed with him. Furthermore, Judges of the Circuit Criminal Courts whose dockets permit, may be assigned by the Supreme Court for a period not exceeding 6 months, unless with their consent, to assist Judges of regular Courts of First Instance with clogged dockets (Sec. 5[3], Art. X, 1973 Constitution). WHEREFORE, IN G.R. NOS. L-34243, 36376, 38688 AND 39525, THE PETITIONS ARE HEREBY DISMISSED AND THE WRITS OF PRELIMINARY INJUNCTION AND/OR RESTRAINING ORDERS ISSUED THEREIN ARE HEREBY LIFTED; IN G.R. No. L-40031, THE PETITION IS HEREBY DISMISSED; AND IN G.R. NO. L-34038, THE ORDER OF RESPONDENT JUDGE DATED JULY 6, 1971 IS HEREBY SET ASIDE AS NULL AND VOID INSOFAR AS THE SAME DISMISSED THE CRIMINAL CASE WITH PREJUDICE AND INSOFAR AS THE SAME DIRECTED THE RETURN TO PRIVATE RESPONDENT THEREIN OF THE ARTICLES SEIZED FROM HIM WHICH ARE NOW SUBJECT OF SEIZURE PROCEEDINGS BEFORE THE CUSTOMS AUTHORITIES, AND THE WRIT OF PRELIMINARY INJUNCTION ISSUED THEREIN IS HEREBY MADE PERMANENT. NO COSTS.

ALVAREZ VS. COURT OF FIRST INSTANCE OF TAYABAS

G.R. No. L-45358 January 29, 1937
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of certain accounting books, documents and papers belonging to him in his residence situated in Infanta, Province of Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to him. On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a money-lender charging usurious rates of interest in violation of the law. In his oath at the and of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his

Page 68 of 217 knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit in question the Judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the petitioner's house at nay time of the day or night, the seizure of the books and documents above-mentioned and the immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board entered the petitioner's store and residence at seven o'clock on the night of June 4, 1936, and seized and took possession of the following articles: internal revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine order books, four notebooks, four checks stubs, two memorandums, three bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of invoices and other papers many documents and loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation. The search for and a seizure of said articles were made with the opposition of the petitioner who stated his protest below the inventories on the ground that the agents seized even the originals of the documents. As the articles had not been brought immediately to the judge who issued the search warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a period of five (5) days within which to show cause why he should not be punished for contempt of court. On June 10th, Attorney Arsenio Rodriguez, representing the AntiUsury Board, filed a motion praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles seized for a period of thirty (30) days for the necessary investigation. The attorney for the petitioner, on June 20th, filed another motion alleging that, notwithstanding the order of the 8th of said month, the officials of the Anti-Usury Board had failed to deposit the articles seized by them and praying that a search warrant be issued, that the sheriff be ordered to take all the articles into his custody and deposit of the Anti-Usury Board be punished for contempt of court. Said attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had deposited some documents and papers in the office of the clerk of court, he had so far failed to file an inventory duly verified by oath of all the documents seized by him, to return the search warrant together with the affidavit it presented in support thereof, or to present the report of the proceedings taken by him; and prayed that said agent be directed to filed the documents in question immediately. On the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file the search warrant and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of all the articles seized. On July 2d of said year, the attorney for the petitioner filed another petition alleging that the search warrant issue was illegal and that it had nit yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to the petitioner, that the agent who seized them be declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On September 10, 1936, the court issued an order holding: that the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and, consequently, should not be cancelled, and that agent Emilio L. Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible period of two (2) days from the date of notice of said order, why all the articles seized appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify the time needed by it to examine the documents and papers seized and which of them should be retained, granting it a period of five (5) days for said purpose. On the 30th of said month the assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to comply with the order of September 25th and that the clerk of court be ordered to return to him all the documents and papers together with the inventory thereof. The court, in an order of October 2d of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send him a copy of the inventory. On October 10th, said official again filed another motion alleging that he needed sixty (60) days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th, the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The petitioner alleges, and it is not denied by the respondents, that these nineteen (19)documents continue in the possession of the court, the rest having been returned to said petitioner. I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court (section 95, General Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others (In re Pacific Railways Commission, 32 Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S., 29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights or citizen, for the enforcement of no statue is of sufficient importance to justify indifference to the basis principles of government (People vs. Elias, 147 N. E., 472). II. As the protection of the citizen and the maintenance of his constitutional right is one of the highest duties and privileges of the court, these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189; Leonardvs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So., 613).

Page 69 of 217 III. The petitioner claims that the search warrant issued by the court is illegal because it has been based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere information secured from a person whom he considered reliable. To the question "What are your reason for applying for this search warrant", appearing in the affidavit, the agent answered: "It has been reported to me by a person whom I consider to be reliable that there are being kept in said premises, books, documents, receipts, lists, chits, and other papers used by him in connection with his activities as a money-lender, charging a usurious rate of interest, in violation of the law" and in attesting the truth of his statements contained in the affidavit, the said agent states that he found them to be correct and true to the best of his knowledge and belief. Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place top be searched, and the persons or things to be seized." Section 97 of General Orders, No. 58 provides that "A search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person or thing to be seized." It will be noted that both provisions require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant ands the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined asan outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God (Bouvier's Law Dictionary; Statevs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused (State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746). It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits unreasonable searches and seizure. Unreasonable searches and seizures are a menace against which the constitutional guarantee afford full protection. The term "unreasonable search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is said to have no fixed, absolute or unchangeable meaning, although the term has been defined in general language. All illegal searches and seizure are unreasonable while lawful ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence or probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs.Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs.Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99). In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the oath was made, and therefore, it is hereby held that the search warrant in question and the subsequent seizure of the books, documents and other papers are illegal and do not in any way warrant the deprivation to which the petitioner was subjected. IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal and cancelled is that it was not supported by other affidavits aside from that made by the applicant. In other words, it is contended that the search warrant cannot be issued unless it be supported by affidavits made by the applicant and the witnesses to be presented necessity by him. Section 1, paragraph 3, of Article III of the Constitution provides that no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing the warrant, examine under oath the complainant and any witnesses he may produce and take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders. No. 58 provides that it is of imperative necessity to take the deposition of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent in this case was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant of the complaint contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exist probable cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the fact is necessary. We conclude, therefore, that the warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts.

Page 70 of 217 V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant and the cancellation thereof, the fact that it authorized its execution at night. Section 101 of General Orders, No. 58 authorizes that the search be made at night when it is positively asserted in the affidavits that the property is on the person or in the place ordered to be searched. As we have declared the affidavits insufficient and the warrant issued exclusively upon it illegal, our conclusion is that the contention is equally well founded and that the search could not legally be made at night. VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was issued illegally is the lack of an adequate description of the books and documents to be seized. Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the affidavit to be presented, which shall serve as the basis for determining whether probable cause exist and whether the warrant should be issued, must contain a particular description of the place to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with (Munchvs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the goods to be seized, their description must be rather generally, it is not required that a technical description be given, as this would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the articles given in the affidavit presented to the judge was as follows: "that there are being kept in said premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging a usurious rate of interest, in violation of the law." Taking into consideration the nature of the article so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to identify the articles, which he did. VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself with evidence to be used by it in the criminal case or cases which might be filed against him for violation of the Anti-usury Law. At the hearing of the incidents of the case raised before the court it clearly appeared that the books and documents had really been seized to enable the Anti-Usury Board to conduct an investigation and later use all or some of the articles in question as evidence against the petitioner in the criminal cases that may be filed against him. The seizure of books and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against the person in whose possession they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an accused to testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs.Madden, 297 Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the documents in question were seized for the purpose of using them as evidence against the petitioner in the criminal proceeding or proceedings for violation against him, we hold that the search warrant issued is illegal and that the documents should be returned to him. The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of the search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there was no such waiver, first, because the petitioner has emphatically denied the offer of compromise and, second, because if there was a compromise it reffered but to the institution of criminal proceedings fro violation of the Anti-Usury Law. The waiver would have been a good defense for the respondents had the petitioner voluntarily consented to the search and seizure of the articles in question, but such was not the case because the petitioner protested from the beginning and stated his protest in writing in the insufficient inventory furnished him by the agents. Said board alleges as another defense that the remedy sought by the petitioner does not lie because he can appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an appeal from said orders would have to lapse before he recovers possession of the documents and before the rights, of which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456). Summarizing the foregoing conclusions, we hold: 1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure, should be given a liberal construction in favor of the individual in order to maintain the constitutional guaranties whole and in their full force; 2. That since the provisions in question are drastic in their form and fundamentally restrict the enjoyment of the ownership, possession and use of the personal property of the individual, they should be strictly construed; 3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant was based solely upon the affidavit of the petitioner who had no personal knowledge of the facts of probable cause, and (b) because the warrant was issued for the sole purpose of seizing evidence which would later be used in the criminal proceedings that might be instituted against the petitioner, for violation of the Anti-Usury Law;

Page 71 of 217 4. That as the warrant had been issued unreasonably, and as it does not appear positively in the affidavit that the articles were in the possession of the petitioner and in the place indicated, neither could the search and seizure be made at night; 5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant or a complainant in cases where the latter has personal knowledge of the facts, when the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits of other witnesses so that he may determine whether probable cause exists; 6. That a detailed description of the person and place to be searched and the articles to be seized is necessary, but whereby, by the nature of the articles to be seized, their description must be rather general, but is not required that a technical description be given, as this would mean that no warrant could issue; 7. That the petitioner did not waive his constitutional rights because the offer of compromise or settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search and seizure; and 8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the petition for mandamusfiled by him, lies. For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders of the respondent court authorizing the relation of the books and documents, are declared illegal and are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as to costs. So ordered. Separate Opinions ABAD SANTOS, J., concurring: My views on the fundamental questions involved in this case are fully set forth in my dissenting opinion filed in People vs. Rubio (57 Phil., 384, 395). I am gratified to see that, in the main, those views have now prevailed. I therefore concur in the decision of the court herein. LAUREL, J., concurring: I subscribe to the views expressed in the foregoing carefully prepared opinion, with the reservation now to be stated. To my mind, the search warrant in this case does not satisfy the constitutional requirement regarding the particularity of the description of "the place to be searched and the persons or things to be seized" (par. 3, sec. 1, Art. III, Constitution of the Philippines). Reference to "books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging usurious rates of interest in violation of the law" in the search warrant is so general, loose and vague as to confer unlimited discretion upon the officer serving the warrant to choose and determine for himself just what are the "books, documents, receipts, lists, chits and other papers" used by the petitioner in connection with his alleged activities as money-lender. The evident purpose and intent of the constitutional requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant, to the end that unreasonable searches and seizures may not be made, that abuses may not be committed (Uy Kheytin vs. Villareal, 42 Phil., 886).

SOLIVEN VS. JUDGE MAKASIAR

G.R. No. 82585 November 14, 1988
PER CURIAM: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support.

Page 72 of 217 It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination nder oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaintaffidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue.

Page 73 of 217 WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED. Separate Opinions GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious. Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). The United States Supreme Court is even more emphatic, to wit:

Page 74 of 217 In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by lawthe argument of force in its worst form. ... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. Separate Opinions GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom.

Page 75 of 217 We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious. Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).<re||an1w> The United States Supreme Court is even more emphatic, to wit: In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the

Page 76 of 217 power of reason as applied through public discussion, they eschewed silence coerced by law the argument of force in its worst form. ... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied.

PENDON VS. COURT OF APPEALS

G.R. No. 84873. November 16, 1990.*FIRST DIVISION. ERLE PENDON, for himself and as Managing Partner of KENER TRADING COMPANY, petitioner, vs. THE COURT OF APPEALS, HON. ENRIQUE T. JOCSON in his capacity as Presiding Judge of Branch 47, Regional Trial Court of Negros Occidental, FISCAL ALEXANDER N. MIRANO, in his capacity as City Fiscal of Bacolod City and THE PROVINCIAL COMMANDER OF THE 331st PC COMPANY, BACOLOD CITY, respondents. Constitutional Law; Searches and Seizures; Search Warrant; Right against unreasonable searches and seizures guaranteed under Article III, Section 2 of the 1987 Constitution.The right against unreason-able searches and seizures is guaranteed under Article III (Bill of Rights), Section 2 of the 1987 Constitution of the Philippines. Same; Same; Same; The issuance of a search warrant is justified only upon a finding of probable cause; Probable cause defined; Requisites.Under the above provision, the issuance of a search warrant is justified only upon a finding of probable cause. Probable cause for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, Dec. 26, 1984, 133 SCRA 800). In determining the existence of probable cause, it is required that: 1) the judge (or) officer must examine the x x witnesses personally; 2) the examination must be under oath; and (3) the examination must be reduced to writing in the form of searching questions and answers. Same; Same; Same; Same; The opinion or finding of probable cause must to a certain degree be substantiated or supported by the record.It has been ruled that the existence of probable cause depends to a large degree upon the finding or opinion of the judge conducting the examination (Luna v. Plaza, G.R. No. L-27511, Nov. 29, 1968), however, the opinion or finding of probable cause must, to a certain degree, be substantiated or supported by the record. Same; Same; Same; Same; Same; Requirement mandated by the law and the rules that the judge must personally examine the applicant and his witnesses in the form of searching questions and answers before issuing the warrant was not sufficiently complied with; Case at bar.In this case, We find that the requirement mandated by the law and the rules that the judge must personally examine the applicant and his witnesses in the form of searching questions and answers before issuing the warrant, was not sufficiently complied with. The applicant himself was not asked any searching question by Judge Magallanes. The records disclose that the only part played by the applicant, Lieutenant Rojas was to subscribe the application before Judge Magallanes. The

Page 77 of 217 application contained pre-typed questions, none of which stated that applicant had personal knowledge of a robbery or a theft and that the proceeds thereof are in the possession and control of the person against whom the search warrant was sought to be issued. Same; Same; Same; Same; routinary or pro forma.It is the claimed probable cause is must make his own inquiry on Same; To establish probable cause, the examination must be probing and exhaustive not merely axiomatic that the examination must be probing and exhaustive, not merely routinary or pro forma, if to be established. The examining magistrate must not simply rehash the contents of the affidavit but the intent and justification of the application.

Same; Same; Same; The law requires that the articles sought to be seized must be described with particularity. Another infirmity of Search Warrant No. 181 is its generality. The law requires that the articles sought to be seized must be described with particularity. The items listed in the warrant, to wit: NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum wires and other NAPOCOR Towers parts and line accessories are so general that the searching team can practically take half of the business of Kener Trading, the premises searched. Kener Trading, as alleged in petitioners petition before respondent Court of Appeals a nd which has not been denied by respondent, is engaged in the business of buying and selling scrap metals, second hand spare parts and accessories and empty bottles. Same; Same; Same; Same; Items described in the application do not fall under the list of personal property which may be seized under Section 2, Rule 126 of the Rules on Criminal Procedure.Far more important is that the items described in the application do not fall under the list of personal property which may be seized under Section 2, Rule 126 of the Rules on Criminal Procedure because neither the application nor the joint deposition alleged that the item/s sought to be seized were: a) the subject of an offense; b) stolen or embezzled property and other proceeds or fruits of an offense; and c) used or intended to be used as a means of committing an offense. Same; Same; Same; In issuing a search warrant, the Judge must strictly comply with the requirements of the Constitution and the Statutory provisions.Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity are to be invoked in aid of the process when an officer undertakes to justify it. Same; Same; Same; Use in evidence of the articles seized pursuant to an invalid search warrant enjoined by Section 3 (2), Article III of the Constitution; Return of the Articles seized to petitioner is proper. Finally, the seized articles were described in the receipt issued by PC Sergeant Mamaril as galvanized bolts, V-chuckle, U-bolts and 3 1/2 feet angular bar (p. 21, Record). There is no showing that the possession thereof is prohibited by law hence, the return thereof to petitioner is proper. Also, the use in evidence of the articles seized pursuant to an invalid search warrant is enjoined by Section 3(2), Article III of the Constitution. PETITION for certiorari to review the decision of the Court of Appeals. The facts are stated in the opinion of the Court. Ledesma, Guinez, Causing, Espino & Serfino Law Office for petitioner. MEDIALDEA, J.: This petition for review on certiorari seeks to set aside the decision (pp. 38-42, Rollo) of respondent Court of Appeals which affirmed the orders dated August 24, 1987 (p. 43, Record) and October 14, 1987, (pp. 53-54, Record) of the Regional Trial Court of Negros Occidental in Criminal Case No. 5657. On February 4, 1987, First Lieutenant Felipe L. Rojas, Officer-in-Charge of the Philippine Constabulary-Criminal Investigation Service (PC-CIS), Bacolod City, filed an application for a search warrant, alleging: x x x. That he was informed and verily believes that KENNETH SIAO who may be found at KENER TRADING located at Rizal Street corner Lacson Street, Bacolod City has/have in her/his/their possession and control the following property/ies, to wit: NAPOCOR Galvanized bolts, grounding motor drive assembly; aluminum wires and other NAPOCOR Tower parts and line accessories which he/she/they is/are concealing in the premises above mentioned. The undersigned has verified the report and found it to be the fact and has therefore reasons to believe that a SEARCH WARRA NT should be issued to enable the undersigned or any agent of the law to take possession and bring the following described property/ies, to wit: NAPOCOR Galvanized bolts; grounding motor drive assembly; aluminum wires and other NAPOCOR Tower parts and line accessories. WHEREFORE, the undersigned prays this Honorable Court to issue a SEARCH WARRANT commanding any peace officer to search the premises/house described in this application and to seize and bring to this Honorable Court the person/property/ies above-mentioned to be dealt with as the law may direct. Bacolod City, Philippines Feb. 4, 1987 _______. SGD. FELIPE L. ROJAS, JR. ILT, PC OIC, PFOCIS, Bacolod City (p. 18, Records)

Page 78 of 217 The application was subscribed before Judge Demosthenes D. Magallanes of the Municipal Trial Court of Bacolod City and supported by the joint deposition of two (2) witnesses, Ignacio L. Reyes, an employee of NAPOCOR (National Power Corporation) and IAI Eduardo Abaja of the CIS of Bacolod City, quoted as follows: We, Ignacio L. Reyes and IAI Eduardo Abaja, CIS after having been duly sworn to, testify as f ollows: 1. QUESTION: What are your names and other personal circumstances? ANSWER: IGNACIO L. REYES, 34 years old, married, an employee of NAPOCOR and presently residing at Eroreco Subdivision, Bacolod City and AIA EDUARDO ABAJA, CIS, regular member of the CO/INP CIS Command, Bacolod City. 2. QUESTION: Do you know the premises/house of KEN-NETH SIAO located at Rizal Street, near cor. Lacson St., Bacolod City? ANSWER: Yes, Sir. 3. QUESTION: Do you have personal knowledge that said KENNETH SIAO who may be found in the said premises/house has/ have in his/her/their possession and control the following property, to wit: NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum wires and other NAPOCOR Tower parts and line accessories? ANSWER: Yes, sir. 4. QUESTION: How do you know that above-described property/ies is/are being kept in said premises /house? ANSWER: We conducted surveillance and we were able to purchase some of these items. IN WITNESS WHEREOF, we hereunto set our hands and aff ixed our signature this 4th day of Feb. 1987 at Bacolod City, Philippines. SGD. IGNACIO L. REYES SGD. EDUARDO J. ABAJA Affiant Affiant SUBSCRIBED AND SWORN to, before me this 4th day of Feb. 1987 at Bacolod City, Philippines. SGD. DEMOSTHENES L. MAGALLANES Judge MUNICIPAL TRIAL COURT BACOLOD CITY (p. 19, Record) On the basis of the foregoing application and joint deposition, Judge Magallanes issued Search Warrant No. 181, commanding the search of the property described in the warrant. Subsequently, constabulary officers stationed in Bacolod City conducted a search of the premises described in the search warrant and seized the following articles, to wit: 1) 272 kilos of galvanized bolts, V chuckle and U-bolts; and 2) 3 and 1/2 feet angular bar. The receipt was signed by Digno Mamaril, PC Sergeant and marked from Kenneth Siao (p. 21, Record). A complaint for violation of the Anti-Fencing Law (P.D. 1612) was filed against Kenneth Siao with the office of the City Fiscal by the National Power Corporation. Thereafter, Siao filed a counter-affidavit alleging that he had previously relinquished all his rights and ownership over the Kener Trading to herein petitioner Erle Pendon. In a resolution (pp. 22-23, Record) dated May 18, 1987, the office of the City Fiscal recommended the dismissal of the complaint against Siao and the filing of a complaint for the same violation against petitioner. On the same day, a complaint (p. 24, Record) for Violation of the Anti-Fencing Law was filed against petitioner and docketed as Criminal Case No. 5657 of the Regional Trial Court of Negros Occidental. The case was raffled to Branch 47 of the same court presided over by respondent Judge Enrique T. Jocson. Before his arraignment, petitioner filed on July 9, 1987, an application for the return of the articles seized by virtue of Search Warrant No. 181 (pp. 26-29, Record) on the ground that the said search warrant was illegally issued. The prosecuting fiscal filed an opposition to the application (pp. 31-32, Record). The application was subsequently amended to an application for quashal of the illegally-issued search warrant and for the return of the articles seized by virtue thereof (pp. 33-38, Records). On August 24, 1987, respondent Judge Jocson issued an order impliedly denying the application for the quashal of the search warrant without ruling on the issue of the validity of the issuance thereof. The order states: Counsel for accused having admitted in the hearing in open court that at least one of the seize d items bears the identifying mark of the complainant National Power Corporation, and there being no statement that the seized items were acquired in usual course of business for value, this court is constrained to have the case tried without resolving whether or not the questioned search warrant was issued validly. (p. 43, Records) A motion for reconsideration was filed by petitioner but it was denied on October 14, 1987 (p. 11, Rollo). On October 20, 1987, petitioner filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with a prayer for a restraining order, assailing the legality of search warrant No. 181 and praying for the permanent prohibition against the use in evidence of the articles and properties seized and the return thereof to petitioner. On April 4, 1988, respondent Court of Appeals dismissed the petition. The appellate court found the existence of a probable cause to justify the issuance of the search warrant. The respondent court held: x x x

Page 79 of 217 For reasons indicated, We hold that the evidence was sufficient to sustain the validity of the issuance of the Search Warrant No. 181 and to sustain further the ruling of the respondent trial court in denying the petition for the return of the articles and personal properties seized thereunder. WHEREFORE, this petition is hereby DISMISSED, with costs against petitioner. The previous order to maintain the status quo i s hereby withdrawn and set aside. SO ORDERED. (p. 41, Rollo) The motion for reconsideration of the above decision filed by petitioner on May 2, 1988 was denied in a resolution (p. 49, Rollo) dated July 21, 1988. The basic issue raised in this petition is the legality of the issuance of Search Warrant No. 181. It is the contention of petitioner that the application for the search warrant and the joint deposition of the witnesses miserably failed to fulfill the requirements prescribed by the Constitution and the rules. The petitioner argues that the application of 1st Lt. Rojas and the joint deposition of Abaja and Reyes failed to comply with the requisites of searching questions and answers. The joint deposition of the witnesses showed that the questions therein were pretyped, mimeographed and the answers of the witnesses were merely filled-in. No examination of the applicant and of the joint deponents was personally conducted by Judge Magallanes as required by law and the rules. Additionally, petitioner also contends that both the application of Rojas and the joint deposition of Abaya and Reyes show that neither of the affiants had personal knowledge that any specific offense was committed by petitioner or that the articles sought to be seized were stolen or that being so, they were brought to Kenneth Siao. Lastly, the petitioner contends that, even assuming for the sake of polemics, that the articles belong to the latter, his Constitutional right prevails over that of NAPOCOR. The right against unreasonable searches and seizures is guaranteed under Article III (Bill of Rights), Section 2 of the 1987 Constitution of the Philippines which provides: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Under the above provision, the issuance of a search warrant is justified only upon a finding of probable cause. Probable cause for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, Dec. 26, 1984, 133 SCRA 800). In determining the existence of probable cause, it is required that: 1) the judge (or) officer must examine the x x witnesses personally; 2) the examination must be under oath; and (3) the examination must be reduced to writing in the form of searching questions and answers (Marinas v. Sioco, 104 SCRA 403, Ponsica v. Ignalaga, G.R. No. 72301, July 31, 1987, 152 SCRA 647). These requirements are provided under Section 4, Rule 126 of the New Rules of Criminal Procedure which states: Sec. 4. Examination of complain-ant; record.The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. It has been ruled that the existence of probable cause depends to a large degree upon the finding or opinion of the judge conducting the examination (Luna v. Plaza, G.R. No. L-27511, Nov. 29, 1968), however, the opinion or finding of probable cause must, to a certain degree, be substantiated or supported by the record. In this case, We find that the requirement mandated by the law and the rules that the judge must personally examine the applicant and his witnesses in the form of searching questions and answers before issuing the warrant, was not sufficiently complied with. The applicant himself was not asked any searching question by Judge Magallanes. The records disclose that the only part played by the applicant, Lieutenant Rojas was to subscribe the application before Judge Magallanes. The application contained pre-typed questions, none of which stated that applicant had personal knowledge of a robbery or a theft and that the proceeds thereof are in the possession and control of the person against whom the search warrant was sought to be issued. In the case of Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986, 145 SCRA 687, citing the case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388, where the applicant himself was not subjected to an interrogation but was questioned only to ascertain, among others, if he knew and understood (his affidavit) and only because the application was not yet subscribed and sworn to, We held that: Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. x x x It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. (italics supplied; p. 695) Likewise, the joint deposition made by the two (2) witnesses presented by the applicant can hardly satisfy the same requirement. The public respondent prosecutor admitted in his memorandum that the questions propounded were pre-typed. The offense which petitioner was sought to be charged was violation of the anti-fencing law which punishes the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy or sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should have known to him, to

Page 80 of 217 have been derived from the proceeds of the crime of robbery or theft (Sec. 2a, P.D. 1612). The four (4) questions propounded could hardly support a finding of probable cause. The first question was on the personal circumstances of the deponents. The second and third were leading questions answerable by yes or no. The fourth question was on how the deponents knew about their answers in the second and third questions. The judge could have exploited this last ques-tion to convince himself of the existence of a probable cause but he did not. There was also no statement in the joint deposition that the articles sought to be seized were derived from the proceeds of the crime of robbery or a theft or that applicants have any knowledge that a robbery or theft was committed and the articles sought to be seized were the proceeds thereof. It was not even shown what connection Kenneth Siao has with Kener Trading or with the premises sought to be searched. By and large, neither the application nor the joint deposition provided facts or circumstance which could lead a prudent man to believe that an offense had been committed and that the objects sought in connection with the offense, if any, are in the possession of the person named in the application. x x x [T]he searching questions propounded to the applicants of the search warrant and his witnesses must depend to a large extent upon the discretion of the Judge just as long as the answers establish a reasonable ground to believe the commission of a specific offense and that the applicant is one authorized by law, and said answers particularly describe with certainty the place to be searched and the persons or things to be seized. The examination or investigation which must be under oath may not be in public. It may even be held in the secrecy of his chambers. Far more important is that the examination or investigation is not merely routinary but one that is thorough and elicit the required information. To repeat, it must be under oath and must be in writing. (Mata v. Bayona, 50720, March 26, 1984, 128 SCRA 388) (italics supplied) And, in Quintero v. NBI, G.R. No. L-35149, June 23, 1988, 162 SCRA 467, 483: As held in Nolasco v. Pao No. 69803, October 8, 1985, 139 SCRA 163), the questions propounded by respondent Executive Judge to the applicants witness are not sufficiently searching to establish prob able cause. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant. Another infirmity of Search Warrant No. 181 is its generality. The law requires that the articles sought to be seized must be described with particularity. The items listed in the warrant, to wit: NAPOCOR Galvanized bolts, grounding motor drive assem bly, aluminum wires and other NAPOCOR Towers parts and line accessories are so general that the searching team can practically take half of the business of Kener Trading, the premises searched. Kener Trading, as alleged in petitioners petition before respo ndent Court of Appeals and which has not been denied by respondent, is engaged in the business of buying and selling scrap metals, second hand spare parts and accessories and empty bottles. Far more important is that the items described in the application do not fall under the list of personal property which may be seized under Section 2, Rule 126 of the Rules on Criminal Procedure because neither the application nor the joint deposition alleged that the item/s sought to be seized were: a) the subject of an offense; b) stolen or embezzled property and other proceeds or fruits of an offense; and c) used or intended to be used as a means of committing an offense. It is noted that respondent Judge Jocson himself had doubts about the existence of probable cause in the issuance of the search warrant. In denying petitioners motion for reconsideration of the denial of his motion to quash and application for articles seized b y virtue of search warrant No. 181, he stated: The seeming lack of probable cause during the application for search warrant in the lower court is cured by the admission for the accused of counsel that at least one of the items seized bore the identifying mark of complainant National Power Corporation and the failure to aver in the quashal motion and in the open hearing that the seized items themselves were acquired in the usual course of business for value in good faith. However, this order is without prejudice to the right of the accused to pursue against the administrative liability of MTCC Judge Demosthenes Magallanes. (p. 54, Rollo) In his memorandum, City Fiscal Mirano stated that the articles seized by virtue of search warrant No. 181 was taken from the possession of petitioner who signed the receipt in behalf of Kener Trading, which possession is punishable under Section 5, P.D. 1612, which states: Sec. 5. Presumption of Fencing.Mere possession of any goods, article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. No matter how incriminating the articles taken from the petitioner may be, their seizure cannot validate an invalid warrant. Again, in the case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388: x x x that nothing can justify the issuance of the search warrant but the fulfillment of the legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. vs. Herrera: It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity are to be invoked in aid of the process when an officer undertakes to justify it. Finally, the seized articles were described in the receipt issued by PC Sergeant Mamaril as galvanized bolts, V-chuckle, U-bolts and 3 1/2 feet angular bar (p. 21, Record). There is no showing that the possession thereof is prohibited by law hence, the return thereof to petitioner is proper. Also, the use in evidence of the articles seized pursuant to an invalid search warrant is enjoined by Section 3(2), Article III of the Constitution.

Page 81 of 217 ACCORDINGLY, the petition is GRANTED. Judgment is hereby rendered: 1) declaring Search Warrant No. 181 issued by Judge Demosthenes Magallanes NULL and VOID; 2) ordering the return of the items seized by virtue of the said warrant to herein petitioner; and 3) permanently enjoining respondents from using in evidence the articles seized by virtue of Search Warrant No. 181 in Criminal Case No. 5657. SO ORDERED.

LIM, SR. VS. JUDGE FELIX

G.R. Nos. 94054-57 February 19, 1991
May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest? On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. An investigation of the incident then followed. Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211. After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that: . . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57) xxx xxx xxx In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused. Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each. On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case. On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied. On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail. On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90) On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit: Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or Makati, the Court

Page 82 of 217 Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to the Executive Judge, Regional Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said cases until such time that the petition is finally resolved. The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix. Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed for the following: 1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its personal determination of the existence of a probable cause or prima facieevidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause. 2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and 3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57) In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists a prima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. The motions and manifestations were opposed by the prosecution. On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said: In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied) xxx xxx xxx The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order. In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14. In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved: xxx xxx xxx . . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho. The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists. This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. However, the certification

Page 83 of 217 does not bind the judge to come out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution which provides: . . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce . . . We ruled: . . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court. Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest. Under this section, the judge must satisfy himself of the existence of probable cause before issuing a warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of long-standing practice had been attached to the information filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the case where he was satisfied that probable cause existed. The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution. We stated: The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examinations and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above interpretation of "personal" determination by the Judge: We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution)

Page 84 of 217 First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891): Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that whenever "there are enough his or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessary mean that it should be indiscriminately exercised. The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations. This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the present [1987] Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize the function to be judicial in nature. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the Judge. . . . Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it.

Page 85 of 217 It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms. There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions. At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable cause to be personally determined by the judge . . .", not by any other officer or person. If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion. The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest. We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge. The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require. It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit: It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985). ( Rollo of G.R. Nos. 94054-56, pp. 200-201) We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause.

Page 86 of 217 WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made PERMANENT. SO ORDERED.

NOLASCO VS. PAO

G.R. No. L-69803 January 30, l987
For resolution are petitioners' and public respondents' respective Motions for Partial Reconsideration of this Court's Decision of October 8, 1985, which decreed that: WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pano is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondents from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents Case hereby made permanent, the personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC1-1, pending before Special Military Commission No. 1, without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all irrelevant documents and articles. (Rollo, p. 154; 139 SCRA 165). In their Motion for Partial Reconsideration, public respondents maintain that the subject Search Warrant meets the standards for validity and that it should be considered in the context of the criminal offense of Rebellion for which the Warrant was issued, the documents to establish which are less susceptible of particularization since the offense does not involve an isolated act or transaction. In their own Motion for Partial Reconsideration, petitioners assail that portion of the Decision holding that, in so far as petitioner Mila Aguilar-Roque is concerned, the search made in her premises was incident to her arrest and could be made without a search warrant. Petitioners submit that a warrantless search can be justified only if it is an incident to a lawful arrest and that since Mila Aguilar was not lawfully arrested a search without warrant could not be made. On April 10, 1986, we required the parties to MOVE in the premises considering the supervening events, including the change of administration that have transpired, and pursuant to the provisions of Section 18 of Rule 3 in so far as the public respondents are concerned (which requires the successor official to state whether or not he maintains the action and position taken by his predecessor-in-office). In their Compliance, petitioners maintain that the arrest of petitioners and the search of their premises thereafter are both illegal and that the personalties seized should be ordered returned to their owners. The Solicitor General on behalf of public respondents, "in deference to the dissenting opinion of then Supreme Court Justice (now Chief Justice) Claudio Teehankee," now offer no further objection to a declaration that the subject search is illegal and to the return of the seized items to the petitioners. Respondents state, however, that they cannot agree to having the arrest of petitioners declared illegal. The pertinent portion of the dissenting opinion referred to reads: ... The questioned search warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross violation of the constitutional mandate that 'the right of the people to be secure in their persons, houses, papers and effects aqainst unreasonable searches and seizures of whatever nature and for any purpose shall not be violated' (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence: "Any evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the power of the courts to change or modify. All the articles thus seized fag under the exclusionary rule totally and unqualifiedly and cannot be used against any of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30, 1985). ... ACCORDINGLY, considering the respective positions now taken by the parties, petitioners' Motion for Partial Reconsideration of this Court's Decision of October 8, 1985 is GRANTED, and the dispositive portion thereof is hereby revised to read as follows:

Page 87 of 217 WHEREFORE, Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondents from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents Case hereby made permanent. The personalities seized by virtue of the illegal Search Warrant are hereby ordered returned to petitioners. SO ORDERED. Separate Opinions TEEHANKEE, C.J., concurring: I felicitate my colleagues for granting petitioners' motion for reconsideration and now totally applying the exclusionary rule by declaring that the search and seizure of the personalities at petitioner Mila Aguilar Roque's dwelling at Mayon Street, Quezon City was illegal and could not be deemed as incident to her arrest earlier on board a public vehicle on the road away from and outside of her dwelling. Solicitor General Sedfrey A. Ordoez' stand in support hereof signifies one more great step in fulfillment of the pledge of the present government of granting full recognition and restoration of the civil and political liberties of the people and rejecting the oppressive and repressive measures of the past authoritarian regime. The original majority decision citing sec. 12, Rule 126 of the Rules of Court 1 had held that said Rule states "a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched." "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." " This pronouncement had the support of a majority of nine (9) Justices of the Court at the time. Three (3) members had dissented, 2 while two (2) other members took no part or reserved their vote. 3 As the petitioners stress in their motion for reconsideration, "(I)f the majority opinion becomes settled law, the constitutional protection would become meaningless. The military or police would no longer apply for search warrants. All that they would do is procure a search (sic) 4 warrant or better still a PDA, for the person whose house they would want to search Armed with a warrant of arrest or a PDA, the military or police would simply wait for the person to reach his house, then arrest him. Even if the person arrested does not resist and has in fact been taken away already from his house, under the majority ruling, the arresting party would still have the right to search the house of the arrestee and cart away and his things and use them as evidence against him in court. In such a situation, what then happens to that stringent constitutional requirement that 'no search warrant . . . . shall issue except upon probable cause to be determined by the judge, or such other responsible officers as may be authorized by law, after examination under oath or affirmation of the committed weapons or anything which may be used as proof of the commission of the offense. complainant and the witnesses he may produce and particularly describing the place to be searched, and the things to be seized' and the constitutional in unction that 'any evidence obtained in violation of this . ... shall be inadmissible for any purpose in any proceeding. 5 The better and established rule is a strict application of the exception provided in Rule 126, sec. 12 and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her person at the time of and incident to his or her arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arrest. 6 Applying the aforestated rule to this case, the undisputed act is that petitioner Mila Aguilar Roque was arrested at 11:30 and aboard a public vehicle on the road (at Mayon and P. Margal Sts.). The pronouncement by the majority at that time, that as an incident to her arrest, her dwelling at 239-B Mayon Street could be searched even without a warrant for evidence of the charges of rebellion filed against her was contrary to the constitutional prescription, as defined by law and jurisprudence. It was tantamount to sanctioning an untenable violation, if not nullification, of the basic constitutional right and guarantee against unreasonable searches and seizures. With the Court now unanimously upholding the exclusionary rule, in toto, the constitutional mandate is given full force and effect. This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of the military and police officers todisregard such basic rights. This is of special public importance and serves as a shield in the remote provinces and rural areas to the people who have no access to courts for prompt and immediate relief from violations of their constitutional rights against unreasonable searches and seizures. In this case, the arresting CSG group of the military themselves knew that they needed a search warrant but they obtained the void general warrant in question. Necessarily, the seizure of documents and personal effects with such a void warrant could not be justified "as an incident of an arrest" outside petitioner's dwelling and the Constitution bars their admissibility as evidence and ordains their return to petitioners.

Page 88 of 217 Separate Opinions TEEHANKEE, C.J., concurring: I felicitate my colleagues for granting petitioners' motion for reconsideration and now totally applying the exclusionary rule by declaring that the search and seizure of the personalities at petitioner Mila Aguilar Roque's dwelling at Mayon Street, Quezon City was illegal and could not be deemed as incident to her arrest earlier on board a public vehicle on the road away from and outside of her dwelling. Solicitor General Sedfrey A. Ordoez' stand in support hereof signifies one more great step in fulfillment of the pledge of the present government of granting full recognition and restoration of the civil and political liberties of the people and rejecting the oppressive and repressive measures of the past authoritarian regime. The original majority decision citing sec. 12, Rule 126 of the Rules of Court 1 had held that said Rule states "a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched." "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." " This pronouncement had the support of a majority of nine (9) Justices of the Court at the time. Three (3) members had dissented, 2 while two (2) other members took no part or reserved their vote. 3 As the petitioners stress in their motion for reconsideration, "(I)f the majority opinion becomes settled law, the constitutional protection would become meaningless. The military or police would no longer apply for search warrants. All that they would do is procure a search (sic) 4 warrant or better still a PDA, for the person whose house they would want to search Armed with a warrant of arrest or a PDA, the military or police would simply wait for the person to reach his house, then arrest him. Even if the person arrested does not resist and has in fact been taken away already from his house, under the majority ruling, the arresting party would still have the right to search the house of the arrestee and cart away and his things and use them as evidence against him in court. In such a situation, what then happens to that stringent constitutional requirement that 'no search warrant . . . . shall issue except upon probable cause to be determined by the judge, or such other responsible officers as may be authorized by law, after examination under oath or affirmation of the committed weapons or anything which may be used as proof of the commission of the offense. complainant and the witnesses he may produce and particularly describing the place to be searched, and the things to be seized' and the constitutional in unction that 'any evidence obtained in violation of this . ... shall be inadmissible for any purpose in any proceeding. 5 The better and established rule is a strict application of the exception provided in Rule 126, sec. 12 and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her person at the time of and incident to his or her arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arrest. 6 Applying the aforestated rule to this case, the undisputed act is that petitioner Mila Aguilar Roque was arrested at 11:30 and aboard a public vehicle on the road (at Mayon and P. Margal Sts.).lwphl@it The pronouncement by the majority at that time, that as an incident to her arrest, her dwelling at 239-B Mayon Street could be searched even without a warrant for evidence of the charges of rebellion filed against her was contrary to the constitutional prescription, as defined by law and jurisprudence. It was tantamount to sanctioning an untenable violation, if not nullification, of the basic constitutional right and guarantee against unreasonable searches and seizures. With the Court now unanimously upholding the exclusionary rule, in toto, the constitutional mandate is given full force and effect. This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of the military and police officers todisregard such basic rights. This is of special public importance and serves as a shield in the remote provinces and rural areas to the people who have no access to courts for prompt and immediate relief from violations of their constitutional rights against unreasonable searches and seizures. In this case, the arresting CSG group of the military themselves knew that they needed a search warrant but they obtained the void general warrant in question. Necessarily, the seizure of documents and personal effects with such a void warrant could not be justified "as an incident of an arrest" outside petitioner's dwelling and the Constitution bars their admissibility as evidence and ordains their return to petitioners.

PAPA VS. MAGO

G.R. No. L-27360 February 28, 1968
This is an original action for prohibition and certiorari, with preliminary injunction filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of

Page 89 of 217 First Instance of Manila, praying for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967, which authorized the release under bond of certain goods which were seized and held by petitioners in connection with the enforcement of the Tariff and Customs Code, but which were claimed by respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said case. Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No. 67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police Department without search warrant issued by a competent court; that anila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods because the goods were no longer under the control and supervision of the Commissioner of Customs; that the goods, even assuming them to have been misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them from another person without knowledge that they were imported illegally; that the bales had not yet been opened, although Chief of Police Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and that unless restrained their constitutional rights would be violated and they would truly suffer irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor. On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the respondents in Civil Case No. 67496 now petitioners in the instant case before this Court from opening the nine bales in question, and at the same time set the hearing of the petition for preliminary injunction on November 16, 1966. However, when the restraining order was received by herein petitioners, some bales had already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of herein respondent Remedios Mago. Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because the full duties and charges thereon had not been paid; that the members of the Manila Police Department had the power to make the seizure; that the seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and Customs Code could effect search, seizures and arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be granted for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the case. At the hearing on December 9, 1966, the lower Court, with the conformity of the parties, ordered that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center of the Manila Police Department. On December 13, 1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales. Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per agreement of the patties upon her posting of the appropriate bond that may be determined by the court. Herein petitioners filed their opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all

Page 90 of 217 questions affecting the disposal of property proceeded against in seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the goods. On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond. On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for the court's action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for prohibition and certiorari with preliminary injunction before this Court. In their petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons: (1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient. In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long before seizure, and identification proceedings against the nine bales of goods in question were instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in question after the corresponding duties and taxes had been paid and said goods had left the customs premises and were no longer within the control of the Bureau of Customs; (3) that respondent Remedios Mago was purchaser in good faith of the goods in question so that those goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods was affected by members of the Manila Police Department at a place outside control of jurisdiction of the Bureau of Customs and affected without any search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers have no authority to seize the goods in question because they are not articles of prohibited importation; (7) that petitioners are estopped to institute the present action because they had agreed before the respondent Judge that they would not interpose any objection to the release of the goods under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that the bond for the release of the goods was sufficient. The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in question. The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry". 2 As long as the importation has not been terminated the imported goods remain under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties, taxes, fees and other charges must be in full. 4 The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a comparison of the goods on which duties had been assessed, as shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared, presumably to avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this Court has held that merchandise, the importation of which is effected contrary to law, is subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8 Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been

Page 91 of 217 formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes, and other charges have not been paid or secured to be paid, and to dispose of the same according to law. The goods in question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been issued by the Collector of Customs. The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When the goods where about to leave the customs premises in Manila, on October 6, 1964, the customs authorities held them for further verification, and upon examination the goods were found to be different from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial subsequently demanded from the customs authorities the release of the goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was involved so the Bureau of Customs had no right to examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector of Customs of the port of Manila to compel said customs authorities to release the goods. Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes because the transaction was not an original importation; that the goods were not in the hands of the importer nor subject to importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In resolving the question raised in that case, this Court held: This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the goods and institute forfeiture proceedings against them? and (2) has the Court of First Instance jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the goods? Francindy Commercial contends that since the petition in the Court of first Instance was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of the said court. The record shows, however, that the goods in question were actually seized on October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was to verify whether or not Custom duties and taxes were paid for their importation. Hence, on December 23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly from the Cebu Port (Petition Annex "L"). As to goods imported illegally or released irregularly from Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code (RA 1957). The Bureau of Customs has jurisdiction and power, among others to collect revenues from imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957). The goods in question are imported articles entered at the Port of Cebu. Should they be found to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant to Republic Act 1937. Said proceeding should be followed; the owner of the goods may set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would in effect render ineffective the power of the Customs authorities under the Tariff and Customs Code and deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v. Averia,supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general legislation, not to mention that the former are later enactments, the Court of First Instance should yield to the jurisdiction of the Customs authorities.

Page 92 of 217 It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after the Collector of Customs had issued the warrant of seizure and detention on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods. Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. 15 Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. . . ." 17It is our considered view, therefor, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as follows: Thus contemporaneously with the adoption of the 4th Amendment, we find in the first Congress, and in the following second and fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house of similar place, and like goods in course of transportation and concealed in a movable vessel, where readily they could be put out of reach of a search warrant. . . . Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it was made lawful for customs officers not only to board and search vessels within their own and adjoining districts, but also to stop, search and examine any vehicle, beast or person on which or whom they should suspect there was merchandise which was subject to duty, or had been introduced into the United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probably cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865, revived 2 of the Act of 1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither 3061 nor any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . . In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18 All that they complained of was, That while the trucks were on their way, they were intercepted without any search warrant near the Agrifina Circle and taken to the Manila Police Department, where they were detained. But even if there was a search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining in the instant case. Thus, it has been held that:

Page 93 of 217 The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.) In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant or other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable searches and seizures. The Court said: . . . Neither our state nor the Federal Constitution directly prohibits search and seizure without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is forbidden. . . . . . . The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to. The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called "bootleging" or "rum running," which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. Having declared that the seizure by the members of the Manila Police Department of the goods in question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary, for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings. WHEREFORE, judgment is hereby rendered, as follows: (a) Granting the writ of certiorari and prohibition prayed for by petitioners; (b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First Instance of Manila; (c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any manner in said case; (d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and 1wph1.t (e) Ordering the private respondent, Remedios Mago, to pay the costs. It is so ordered.

ANIAG VS. COMELEC

G.R. No. 104961 October 7, 1994
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

Page 94 of 217 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,

Page 95 of 217 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.

Page 96 of 217 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. Separate Opinions CRUZ, J., concurring: I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent in the case of Valmonte v. De Villa, 178 SCRA 217, where I said: The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at "establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at

Page 97 of 217 any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. xxx xxx xxx

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on checkpoints and finally dismantle them altogether as an affront to individual liberty. VITUG, J., concurring: The ultimate hypothesis of sound governance is not might but the willingness of the governed to accept and subordinate themselves to authority. When our people gave their consent to the fundamental law of the land, they did not renounce but, to the contrary, reserved for themselves certain rights that they held sacred and inviolable. One such right is the privilege to be so secured "in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose." Their sole conceded proviso to this rule is when a search warrant or a warrant of arrest is lawfully issued. There are, to be sure, known exceptions, predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed. It is in this context that I appreciate the ratio decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the installation of checkpoints, the Court clearly has based its decision on the existence at the time of what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did not have the intention to have its ruling continue to apply to less aberrant circumstances than previously obtaining. The question has been asked: Between the security of the State and its due preservation, on the one hand, and the constitutionallyguaranteed right of an individual, on the other hand, which should be held to prevail? There is no choice to my mind not for any other reason than because there is, in the first place, utterly no need to make a choice. The two are not incompatible; neither are they necessarily opposed to each other. Both can be preserved; indeed, the vitality of one is the strength of the other. There should be ways to curb the ills of society so severe as they might seem. A disregard of constitutional mandates or an abuse on the citizenry, I am most certain, is not the answer. It might pay to listen to the words of Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty." It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the Court has expressed: This guaranty is one of the greatest of individual liberties and was already recognized even during the days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives. The provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in the private respondent's view the crime involved is "heinous" and the victim was "a man of consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders" condone the omission for they could not in any case be superior to the Constitution. While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in his ponencia, I would express, nonetheless, the humble view that even on the above constitutional aspect, the petition could rightly be granted. REGALADO, J., concurring and dissenting: I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent commission should be set aside, not because of an unconstitutional warrantless search but by reason of the fact that he was not actually charged as a respondent in the preliminary investigation of the case. With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner in the present recourse, the nullification of said Resolution No. 92-0829 necessarily applies to him and redounds to his benefit. To the extent, therefore, that the majority opinion thereby reinstate the resolution of the Office of the City Prosecutor dismissing the charge against Arellano, I concur in that result. However, even as a simple matter of consistency but more in point of law, I dissent from the rationale submitted therefor, that is, that Arellano was the victim of an unlawful search without a warrant. The pertinent facts stated by the majority readily yield the conclusion that there was consent on the part of Arellano to the search of the car then under his control, particularly of its baggage compartment where the firearms were discovered. As held in People vs. Excela, et al., 1 consent to a search may be given expressly or impliedly, and as early as People vs. Malasugui, 2 the settled rule is that a search may be validly conducted without a warrant if the person searched consented thereto.

Page 98 of 217 I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he was acting in obedience to what he innocently believed to be a lawful order of a superior, that is, the instructions of his employer, petitioner Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of respondent commission which was implemented by the Sergeant-at-Arms of the House of Representatives. The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any legal impossibility for such suppletory application whether by express provision or by necessary implication. And even if the order of petitioner Aniag may be considered as illegal, Arellano acted thereon in good faith 3 and under a mistake of fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat. It being evident from the very records and the factual findings adopted in the majority opinion that no error was committed by the Office of the City Prosecutor in dismissing the charge against Ernesto Arellano for lack of sufficient grounds to engender a well founded belief that a crime had been committed and that he was probably guilty thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a contrary conclusion and directing his prosecution in its Resolution No. 92-0829. DAVIDE, JR., J., concurring and dissenting: I regret that I can concur only in the result, viz., the granting of the petition. Considering the specific issues raised by the petitioner which, as stated in the exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No. 92-0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific disposition declaring (a) illegal the warrantless search conducted by the Philippine National Police (PNP) on 13 January 1992, (b) inadmissible in evidence in any proceeding against the petitioner the firearms seized during such warrantless search, and (c) unconstitutional COMELEC Resolution No. 92-0829. 1. Having declined to rule on the constitutionality of Resolution No. 2327 because "this petition may be resolved without passing upon this particular issue" (first paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the spot checkpoints authorized to be established thereunder. And whether the warrantless search conducted by the PNP at the checkpoint was valid, it being assumed that it would have been, provided there existed a probable cause therefor, is a question of fact whose presentation in this case is either procedurally premature, or one which this Court cannot, with definiteness, resolve considering the obvious paucity of the facts before it. The most the majority opinion can state is that "[t]here was no evidence to show that the police 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." Nothing more could be expected at this stage since the records of the proceedings conducted by the Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of invalidity of the warrantless search and of the inadmissibility in evidence of the firearms seized would thus be premature. It may additionally be relevant to state that the search was not in connection with the crime of illegal possession of firearms, which would have been factually and legally baseless since the firearms involved were licensed and were duly issued to the petitioner by the House of Representatives, but for the violation of the gun ban which was validly decreed by the COMELEC pursuant to its constitutional power to enforce and administer all laws and regulations relative to the conduct of elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution), its statutory authority to have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections (Section 52, Omnibus Election Code), and its statutory authority to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the COMELEC is required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q), Section 261 of the Omnibus Election Code which prohibits the carrying of firearms outside the residence or place of business during the election period unless authorized in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from bearing, carrying, or transporting firearms or other deadly weapons in public places, including any building, street, park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the same during the election period, unless authorized in writing by the COMELEC. In this case, the petitioner himself admits that on 10 January 1992 he was requested by the Sergeant-at-Arms of the House of Representatives to return the two firearms issued to him, and that on 13 January 1992, he instructed his driver, Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde and to return them to the House of Representatives. That day was already within the election period, which commenced the day earlier pursuant to COMELEC Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in Connection With the Elections of National and Local Officials on May 11, 1992), promulgated on 20 November 1991. Considering then that the offense for which he was to be charged was for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of his aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I fail to grasp the rationale of a ruling on the admissibility in evidence of the firearms. 2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the ground of unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and directed the petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in

Page 99 of 217 relation to Sections 32, 33, and 35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the resolution was nothing more than a disapproval of the recommendation of the Office of the City Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial of due process because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92 [1992]). The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the petitioner despite the fact that he was never formally charged before the Office of the City Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then acted with grave abuse of discretion amounting to want or excess of jurisdiction. I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse of discretion in directing the filing of an information against the petitioner for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166. # Separate Opinions CRUZ, J., concurring: I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent in the case of Valmonte v. De Villa, 178 SCRA 217, where I said: The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at "establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. xxx xxx xxx

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on checkpoints and finally dismantle them altogether as an affront to individual liberty. VITUG, J., concurring: The ultimate hypothesis of sound governance is not might but the willingness of the governed to accept and subordinate themselves to authority. When our people gave their consent to the fundamental law of the land, they did not renounce but, to the contrary, reserved for themselves certain rights that they held sacred and inviolable. One such right is the privilege to be so secured "in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose." Their sole conceded proviso to this rule is when a search warrant or a warrant of arrest is lawfully issued. There are, to be sure, known exceptions, predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed. It is in this context that I appreciate the ratio decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the installation of checkpoints, the Court clearly has based its decision on the existence at the time of what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did not have the intention to have its ruling continue to apply to less aberrant circumstances than previously obtaining. The question has been asked: Between the security of the State and its due preservation, on the one hand, and the constitutionallyguaranteed right of an individual, on the other hand, which should be held to prevail? There is no choice to my mind not for any other reason than because there is, in the first place, utterly no need to make a choice. The two are not incompatible; neither are they necessarily opposed to each other. Both can be preserved; indeed, the vitality of one is the strength of the other. There should be ways to curb the ills of society so severe as they might seem. A disregard of constitutional mandates or an abuse on the citizenry, I am most certain, is not the answer. It might pay to listen to the words of Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty." It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the Court has expressed: This guaranty is one of the greatest of individual liberties and was already recognized even during the days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the

Page 100 of 217 humblest subject might shut the door of his cottage against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives. The provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in the private respondent's view the crime involved is "heinous" and the victim was "a man of consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders" condone the omission for they could not in any case be superior to the Constitution. While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in his ponencia, I would express, nonetheless, the humble view that even on the above constitutional aspect, the petition could rightly be granted. REGALADO, J., concurring and dissenting: I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent commission should be set aside, not because of an unconstitutional warrantless search but by reason of the fact that he was not actually charged as a respondent in the preliminary investigation of the case. With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner in the present recourse, the nullification of said Resolution No. 92-0829 necessarily applies to him and redounds to his benefit. To the extent, therefore, that the majority opinion thereby reinstate the resolution of the Office of the City Prosecutor dismissing the charge against Arellano, I concur in that result. However, even as a simple matter of consistency but more in point of law, I dissent from the rationale submitted therefor, that is, that Arellano was the victim of an unlawful search without a warrant. The pertinent facts stated by the majority readily yield the conclusion that there was consent on the part of Arellano to the search of the car then under his control, particularly of its baggage compartment where the firearms were discovered. As held in People vs. Excela, et al., 1 consent to a search may be given expressly or impliedly, and as early as People vs. Malasugui, 2 the settled rule is that a search may be validly conducted without a warrant if the person searched consented thereto. I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he was acting in obedience to what he innocently believed to be a lawful order of a superior, that is, the instructions of his employer, petitioner Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of respondent commission which was implemented by the Sergeant-at-Arms of the House of Representatives. The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any legal impossibility for such suppletory application whether by express provision or by necessary implication. And even if the order of petitioner Aniag may be considered as illegal, Arellano acted thereon in good faith 3 and under a mistake of fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat. It being evident from the very records and the factual findings adopted in the majority opinion that no error was committed by the Office of the City Prosecutor in dismissing the charge against Ernesto Arellano for lack of sufficient grounds to engender a well founded belief that a crime had been committed and that he was probably guilty thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a contrary conclusion and directing his prosecution in its Resolution No. 92-0829. DAVIDE, JR., J., concurring and dissenting: I regret that I can concur only in the result, viz., the granting of the petition. Considering the specific issues raised by the petitioner which, as stated in the exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No. 92-0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific disposition declaring (a) illegal the warrantless search conducted by the Philippine National Police (PNP) on 13 January 1992, (b) inadmissible in evidence in any proceeding against the petitioner the firearms seized during such warrantless search, and (c) unconstitutional COMELEC Resolution No. 92-0829. 1. Having declined to rule on the constitutionality of Resolution No. 2327 because "this petition may be resolved without passing upon this particular issue" (first paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the spot checkpoints authorized to be established thereunder. And whether the warrantless search conducted by the PNP at the checkpoint was valid, it being assumed that it would have been, provided there existed a probable cause therefor, is a question of fact whose presentation in this case is either procedurally premature, or one which this Court cannot, with definiteness, resolve considering the obvious paucity of the facts before it. The most the majority opinion can state is that "[t]here was no evidence to show that the police 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." Nothing more could be expected at this stage since the records of the proceedings conducted by the Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of invalidity of the warrantless search and of the inadmissibility in evidence of the firearms seized would thus be premature.

Page 101 of 217

It may additionally be relevant to state that the search was not in connection with the crime of illegal possession of firearms, which would have been factually and legally baseless since the firearms involved were licensed and were duly issued to the petitioner by the House of Representatives, but for the violation of the gun ban which was validly decreed by the COMELEC pursuant to its constitutional power to enforce and administer all laws and regulations relative to the conduct of elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution), its statutory authority to have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections (Section 52, Omnibus Election Code), and its statutory authority to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the COMELEC is required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q), Section 261 of the Omnibus Election Code which prohibits the carrying of firearms outside the residence or place of business during the election period unless authorized in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from bearing, carrying, or transporting firearms or other deadly weapons in public places, including any building, street, park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the same during the election period, unless authorized in writing by the COMELEC. In this case, the petitioner himself admits that on 10 January 1992 he was requested by the Sergeant-at-Arms of the House of Representatives to return the two firearms issued to him, and that on 13 January 1992, he instructed his driver, Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde and to return them to the House of Representatives. That day was already within the election period, which commenced the day earlier pursuant to COMELEC Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in Connection With the Elections of National and Local Officials on May 11, 1992), promulgated on 20 November 1991. Considering then that the offense for which he was to be charged was for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of his aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I fail to grasp the rationale of a ruling on the admissibility in evidence of the firearms. 2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the ground of unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and directed the 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 Sections 32, 33, and 35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the resolution was nothing more than a disapproval of the recommendation of the Office of the City Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial of due process because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92 [1992]). The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the petitioner despite the fact that he was never formally charged before the Office of the City Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then acted with grave abuse of discretion amounting to want or excess of jurisdiction. I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse of discretion in directing the filing of an information against the petitioner for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166.

CABALLES VS. COURT OF APPEALS

G.R. No. 136292 January 15, 2002

This is an appeal by certiorari from the decision1 of respondent Court of Appeals dated September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty beyond reasonable doubt of the crime of theft, and the resolution2 dated November 9, 1998 which denied petitioner's motion for reconsideration. In an Information3 dated October 16, 1989, petitioner was charged with the crime of theft committed as follows: "That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and without the knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00, belonging to and to the damage and prejudice of said owner National Power Corp., in the aforesaid amount. CONTRARY TO LAW." During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued. The facts are summarized by the appellate court as follows: "[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves.

Page 102 of 217 Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did not answer; he appeared pale and nervous. With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued at P55, 244.45. Noceja asked appellant where the wires came from and appellant answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipal jail. In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification card (ID) has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in Pagsanjan. After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The police officers did not believe him and instead locked him up in jail for a week."4 On April 27, 1993, the court a quo rendered judgment5 the dispositive portion of which reads: "WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property worthP55,244.45, the Court hereby sentences him to suffer imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of P55, 244.45, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the ground that the stolen materials were recovered and modified the penalty imposed, to wit: "WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted an indeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of prision mayor, as maximum term. No civil indemnity and no costs."6 Petitioner comes before us and raises the following issues: "(a) Whether or not the constitutional right of petitioner was violated when the police officers searched his vehicle and seized the wires found therein without a search warrant and when samples of the wires and references to them were admitted in evidence as basis for his conviction; (b) Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged in an entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and (c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of innocence." The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. In holding that the warrantless search and seizure is valid, the trial court ruled that: "As his last straw of argument, the accused questions the constitutionality of the search and validity of his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that 'considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge - a requirement which

Page 103 of 217 borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity, a warrantless search of a moving vehicle is justified on grounds of practicability.' The doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that 'automobiles because of their mobility may be searched without a warrant upon facts not justifying warrantless search of a resident or office. x x x To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but are also under obligation to arrest the accused even without a warrant."7 Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did not give any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and seizure shall be deemed inadmissible. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof, which reads: "Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence;8 (2) seizure of evidence in plain view;9 (3) search of moving vehicles;10 (4) consented warrantless search;11 (5) customs search; (6) stop and frisk situations (Terry search);12and (7) exigent and emergency circumstances.13 In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured.14 It is not controverted that the search and seizure conducted by the police officers in the case at bar was not authorized by a search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonable doubt. 1wphi1.nt I. Search of moving vehicle Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.15 Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.16 Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State.17 The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause.18 Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is

Page 104 of 217 charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.19 The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. 20 One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal per se,21 for as long as it is warranted by the exigencies of public order22 and conducted in a way least intrusive to motorists.23 A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds;24 (2) simply looks into a vehicle;25 (3) flashes a light therein without opening the car's doors;26 (4) where the occupants are not subjected to a physical or body search;27 (5) where the inspection of the vehicles is limited to a visual search or visual inspection;28 and (6) where the routine check is conducted in a fixed area.29 None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. In the case of United States vs. Pierre,30 the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle. . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle. . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched.31 This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana;32 (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy - one who participated in the drug smuggling activities of the syndicate to which the accused belonged - that said accused were bringing prohibited drugs into the country.33 In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. Pat. Alex de Castro recounted the incident as follows: "ATTY. SANTOS Q Now on said date and time do you remember of any unusual incident while you were performing your duty?

A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we found out (sic) these conductor wires. Q You mentioned about the fact that when you saw the jeepney you became suspicious, why did you become suspicious?

Page 105 of 217 A Q A Because the cargo was covered with leaves and branches, sir. When you became suspicious upon seeing those leaves on top of the load what did you do next, if any? We stopped the jeepney and searched the contents thereof, sir."34

The testimony of Victorino Noceja did not fare any better: "ATTY SANTOS Q When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir." 35 We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. In People vs. Chua Ho San,36 we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. Thus: "In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause - persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws. This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, confidential report and/or positive identification by informers of courier of prohibited drug and/or the time and place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious bulge in the waist - accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. x x x." (emphasis supplied) In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. 37 Unfortunately, none exists in this case. II. Plain view doctrine It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure.38 It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks39 and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search.40 III. Consented search Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove that petitioner consented to the search. He claims that there is no specific statement as to how the consent was

Page 106 of 217 asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the constitutional guarantee. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.41 Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence.42 The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances.43 Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on;44 (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found;45 (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting.46 It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.47 In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in this wise: "WITNESS Q A On June 28, 1989, where were you? We were conducting patrol at the poblacion and some barangays, sir. xxx Q A Q xxx xxx

After conducting the patrol operation, do you remember of any unusual incident on said date and time? Yes, sir. What is that incident?

A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and the vehicle contained aluminum wires, sir. xxx Q xxx xxx

When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir. Q Did the vehicle stop?

A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw the aluminum wires. Q A Q Before you saw the aluminum wires, did you talk to the accused? Yes, sir, I asked him what his load was. What was the answer of Caballes?

A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at the contents of his vehicle and he answered in the positive. Q A And after you saw for yourself the aluminum wires loaded on the jeep, what did you do? I asked him where those wires came from and he answered those came from the Cavinti area, sir." 48

This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for

Page 107 of 217 doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request.49 In Asuncion vs. Court of Appeals,50 the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna,51 the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon,52 the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla,53 it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. In People vs. Omaweng,54 the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search.1wphi1.nt In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right. 55 In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they wereinforming, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search.56 Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. In People vs. Barros,57 appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos,58 to wit: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law." Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain petitioner's conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure. WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is herebyACQUITTED of the crime charged. Cost de oficio. SO ORDERED.

ROAN VS. GONZALES

G.R. No. 71410 November 25, 1986
Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no less if we are to be true to the mandate of the fundamental law, we do annul. One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown.

Page 108 of 217 That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning. That right is guaranteed in the following provisions of Article IV of the 1973 Constitution: SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable except upon lawful order of the court, or when public safety and order require otherwise. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the military authorities. The articles seized from him are sought to be used as evidence in his prosecution for illegal possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter permanently enjoined. The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioner's house was searched two days later but none of the articles listed in the warrant was discovered. 3 However, the officers conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are now the bases of the charge against the petitioner. 4 To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use of the warrant. 5 Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched." As held in a long line of decisions, the probable cause must refer to only one specific offense. 7 The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was the strengthening of the guaranty against unreasonable searches and seizures. Although the condition did not appear in the corresponding provision of the federa Constitution of the United States which served as our model it was then already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter, following a brief debate, approved by the Convention. 8 Implementing this requirement, the Rules of Court provided in what was then Rule 126: SEC. 4. Examination of the applicant. The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule, but this is not entirely true. As a matter of fact, depositions were taken of the complainant's two witnesses in addition to the affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not subjected to a similar interrogation. Commenting on this matter, the respondent judge declared: The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search warrant on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to the PC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to examine Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the same. Afterwards, he subscribed and swore to the same before me. 10 By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain, among others, if he knew and understood the same," and only because "the application was not yet subscribed and swom to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he

Page 109 of 217 did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant's deposition in writing and attach them to the record, together with the affidavit presented to him. As this Court held in Mata v. Bayona:
11

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he niay produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or nonexistence of the probable cause, to hold liable for perjury the person giving it if it wifl be found later that his declarations are false. We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid. The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering that he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses whose depositions as aforementioned had already been taken by the undersigned." 12 In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not of information personally known to him, as required by settled jurisprudence." 13 The rationale of the requirement, of course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are found to be false. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own personal information, to establish the apphcant's claims. 14 Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions. It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. 15 A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a follower of the opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him to possible misrepresentations from them. The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men deliver arms to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly, and Tohilida said he saw everything through an open window of the house while he was near the gate. 18 He could even positively say that six of the weapons were.45 caliber pistols and two were.38 caliber revolvers. 19 One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law. These would have been judicious questions but they were injudiciously omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant sought was issued forthwith. The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues that whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested his conformity in writing. 20 We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search they were conducting. Confronted with the armed presence of the military and the presumptive authority of a judicial writ, the petitioner had no choice but to submit. This was not, as we held in a previous case, 21 the manifestation merely of our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we see it, an intimidation that the petitioner could not resist. The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner were illegal per se and therefore could have been taken by the military authorities even without a warrant. Possession of the said articles, it is urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles could be taken even without a warrant.

Page 110 of 217 Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioner's premises had no right to be there and therefore had no right either to seize the pistol and bullets. It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se.Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. If the rule were otherwise, then the military authorities could have just entered the premises and looked for the guns reportedly kept by the petitioner without bothering to first secure a search warrant. The fact that they did bother to do so indicates that they themselves recognized the necessity of such a warrant for the seizure of the weapons the petitioner was suspected of possessing. It is true that there are certain instances when a search may be validly made without warrant and articles may be taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest, 22 as when the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband 23and even in the interior upon a showing of probable cause. 24 Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The individual may knowingly agree to be searched or waive objections to an illegal search. 26 And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. 27 Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought and were not in plain view when they were taken. Hence, the rule having been violated and no exception being applicable, the conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are protected by the exclusionary principle. Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution. While conceding that there may be occasions when the criminal might be allowed to go free because "the constable has blundered," Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical means of enforcing the constitutional injunction" against abuse. The decision cited Judge Learned Hand's justification that "only in case the prosecution which itself controls the seizing officials, know that it cannot profit by their wrong, will the wrong be repressed. " The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against him for illegal possession of firearms. Pending resolution of that case, however, the said articles must remain in custodia legis. Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the search warrant by the respondent judge in accordance with the normal procedure. But as we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised. 28 WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null and void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs. SO ORDERED.

JUDICIAL REVIEW MATIBAG VS. BENIPAYO

G.R. No. 149036 April 2, 2002
The Case Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELECs Education and Information Department ("EID" for brevity). The Facts On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a "Temporary" capacity.2

Page 111 of 217 On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3and Borra4 and Tuason5 as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation.6 However, the Commission on Appointments did not act on said appointments. On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for the same term of seven years, expiring on February 2, 2008.7 They took their oaths of office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the Commission on Appointments for confirmation.8 Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to the same positions.9 The Office of the President submitted their appointments for confirmation to the Commission on Appointments.10 They took their oaths of office anew. In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001 11 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated April 14, 200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner. On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department.13 Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are prohibited during the election period beginning January 2 until June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which states in part: "NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing." Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal complaint16 with the Law Department17 against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules and regulations. During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments. In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interimappointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008.18 They all took their oaths of office anew. The Issues The issues for resolution of this Court are as follows: 1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases; 2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interimappointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution;

Page 112 of 217 3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution; 4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her reassignment to the La w Department is illegal and without authority, having been done without the approval of the COMELEC as a collegial body; 5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction. First Issue: Propriety of Judicial Review Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the constitutional issue is the lis mota of the case.19Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad interimappointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the appointments of these three respondents. Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad interimappointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these three respondents were issued ad interim appointments. Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this case. We are not persuaded. Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on detail service.20 Respondents claim that the reassignment was "pursuant to x x x Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief Executive Officer."21Evidently, respondents anchor the legality of petitioners reassignment on Benipayos authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution. On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution, then petitioners reassignment is legal and she has no cause to complain provided the reas signment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of the constitutionality of Benipayos assumptio n of office. Petitioners personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition. Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interimappointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on appeal."22 Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon.23 There is no doubt petitioner raised the constitutional issue on time. Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad interimappointment and assumption of office. Unless the constitutionality of Benipayos ad interim appointment and assumption of office is resolved, the legality of petitioners reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner. In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Courts duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside technicalities of

Page 113 of 217 procedure and resolve any constitutional issue raised.24 Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner. Second Issue: The Nature of an Ad Interim Appointment Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows: "The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity ." (Emphasis supplied) Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution. Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer temporary in character. The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments. We find petitioners argument without merit. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows: "The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." (Emphasis supplied) Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that: "x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an acting appointment which is merely temporary, good until another permanent appointment is issued." (Emphasis supplied) The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interimappointment takes effect immediately. The appointee can at once assume office and exercise, as a de jureofficer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,26this Court elaborated on the nature of an ad interim appointment as follows:

Page 114 of 217 "A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective until disapproval by the Commission on Appointments or until the next adjournment of the Congress." Petitioner cites Blacks Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we explained that: "x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several ad interim appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim which creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being". Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. x x x." (Emphasis supplied) Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of Appeals,28 where the Court stated: "We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondents appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board disapproves them." (Emphasis supplied) An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law."29 Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of anad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.30 Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power.31 A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that: "A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal. xxx

Page 115 of 217 The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines." Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily." (Emphasis supplied) In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac34 and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect immediately. While the Constitution mandates that the COMELEC "shall be independent"36, this provision should be harmonized with the Presidents power to extend ad interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the Presidents power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also run counter to the clear intent of the framers of the Constitution. The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on Appointments - did not provide for ad interim appointments. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in essential government services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following discussion during the deliberations of the Constitutional Commission elucidates this: "FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to provide for ad interim appointments? Perhaps there should be a little discussion on that. xxx MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of anticipating interruption of government business, considering that we are not certain of the length of involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the matter of involuntary recess. FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula x x x. xxx MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the Committee, Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS. This is otherwise called the ad interim appointments. xxx THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the amendment is approved."37 (Emphasis supplied) Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from prolonged vacancies in government offices, including the three constitutional commissions. In his concurring opinion inGuevara vs. Inocentes,38 decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this manner:

Page 116 of 217 "Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress, the evil sought to be avoided interruption in the discharge of essential functions may take place. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments." (Emphasis supplied) Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of essential government services in the May 2001 national elections. Following the decision of this Court in Gaminde vs. Commission on Appointments,39 promulgated on December 13, 2000, the terms of office of constitutional officers first appointed under the Constitution would have to be counted starting February 2, 1987, the date of ratification of the Constitution, regardless of the date of their actual appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001.40 Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her appointment papers, until February 15, 2002,41 the original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001.42 The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court the applicability of theGaminde ruling to their own situation. In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing her successor might create a "constitutional crisis" in view of the proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition for intervention44 in the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001. During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections. If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that "all x x x election cases shall be heard and decided in division",46 the remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are expected to travel around the country before, during and after the elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and strengthening our democracy. Evidently, the exercise by the President in the instant case of her constitutional power to make ad interimappointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pending consent of the Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office. Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the prerogative of the President because the Constitution grants her that power. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant case. The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.49 The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. This situation, however, is only for a short period - from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a trade-off

Page 117 of 217 against the evil of disruptions in vital government services. This is also part of the check-and-balance under the separation of powers, as a trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the Presidents appointing power to the checking power of the legislature. This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one President will appoint all the COMELEC members.50 In the instant case, the Commission on Appointments had long confirmed four 51 of the incumbent COMELEC members, comprising a majority, who could now be removed from office only by impeachment. The special constitutional safeguards that insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure. In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution. Third Issue: The Constitutionality of Renewals of Appointments Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution, which provides as follows: "The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last members for three years, without reappointment. X x x." (Emphasis supplied) Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad interimappointments are deemed permanent in character. There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows: "Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission." (Emphasis supplied) Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the appointment. It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes53why by-passed ad interim appointees could be extended new appointments, thus: "In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress", simply because the President may then issue new appointments - not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so bypassed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason

Page 118 of 217 for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments or reappointments." (Emphasis supplied) Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on ad interim appointments was lifted verbatim.54 The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. The established practice under the present Constitution is that the President can renew the appointments of by-passed ad interim appointees. This is a continuation of the wellrecognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing power in the President. The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interimappointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IXC of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason. The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member whether for a full term of seven years, a truncated term of five or three years, or even for an unexpired term of any length of time can no longer be reappointed to the COMELEC. Commissioner Foz succinctly explained this intent in this manner: "MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or tenure is for seven years. But in cases where the appointee serves only for less than seven years, he would be entitled to reappointment. Unless we put the qualifying words "without reappointment" in the case of those appointed, then it is possible that an interpretation could be made later on their case, they can still be reappointed to serve for a total of seven years . Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution, no reappointment can be made."55 (Emphasis supplied) In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera57 that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all." This was the interpretation despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years and may not be reappointed." To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments.

Page 119 of 217 The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the Presidents power to make ad interim appointments. In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who sponsored58the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles, to wit: "Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to appoint all the members during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during their term of office; and 4) appointments of members would not require confirmation." 59 (Emphasis supplied) There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions. Second, the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. The following exchange in the deliberations of the Constitutional Commission is instructive: "MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of all, to Section 2 (2) on the Civil Service Commission wherein it is stated: "In no case shall any Member be appointed in a temporary or acting capacity." I detect in the Committees proposed resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct in concluding that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he occupied that position for about 12 years in violation of the Constitution? MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of the commissions does not serve beyond 7 years."60 (Emphasis supplied) Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner: "MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and acting capacities."61 (Emphasis supplied) Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointees total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific - reappointment of any kind and exceeding ones term in office beyond the maximum period of seven years. Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of office. Thus, the word "designated" was inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in the following discussion in the Constitutional Commission: "MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR DESIGNATED so that the whole sentence will read: "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

Page 120 of 217 MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be appointed in a temporary or acting capacity." MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointment and a designation. The Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction between appointment and designation, we should specifically place the word so that there will be no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." MR. FOZ: The amendment is accepted, Mr. Presiding Officer. MR. DE LOS REYES: Thank you. THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved."62 The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008 .63 Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution. Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMEL EC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power: "Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of the Commission, shall: xxx (4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law." (Emphasis supplied) The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc. Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that: "As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moments notice, conformably to established jurispr udence x x x.

Page 121 of 217 The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated x x x." Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation. Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as follows: "Section 261. Prohibited Acts. The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission." Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part: "WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows: xxx Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon approval of the Commission. WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001; WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and credible elections; "NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period , provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing." (Emphasis supplied) The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the

Page 122 of 217 resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designati ng Cinco Officer-in-Charge of the EID is legally unassailable. Fifth Issue: Legality of Disbursements to Respondents Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco. WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner. SO ORDERED.

ACTUAL CONTROVERSY IBP VS. ZAMORA

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols around the metropolis. In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI) which detailed the manner by which the joint visibility patrols, called Task Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief of Metro Manila. Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief. [3] In the Memorandum, the President expressed his desire to improve the peace and order situation in Metro Manila through a more effective crime prevention program including increased police patrols.[4] The President further stated that to heighten police visibility in the metropolis, augmentation from the AFP is necessary.[5] Invoking his powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless violence.[6] Finally, the President declared that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation shall have improved.[7] The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows: xxx 2. PURPOSE: The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to national security. 3. SITUATION: Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized syndicates whose members include active and former police/military personnel whose training, skill, discipline and firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by active or former police/military personnel. 4. MISSION:

Page 123 of 217 The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members include those that are well-trained, disciplined and well-armed active or former PNP/Military personnel. 5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS: a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against insurgents and other serious threat to national security, although the primary responsibility over Internal Security Operations still rests upon the AFP. b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace and order in their locality. c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and assessing the security situation. xxx.[8] The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport. [9] On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that: I THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT: A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION; B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION; C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT. II IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10] Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement. Without granting due course to the petition, the Court in a Resolution,[11] dated 25 January 2000, required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment. The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines, contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is not proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in the Constitution. The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the Presidents factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3) Whethe r or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and the civilian character of the PNP. The petition has no merit.

Page 124 of 217 First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution. The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case.

Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.[13] The term interest means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.[14] The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[15] In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. Based on the standards abovestated, the IBP has failed to present a specific and substantial interest in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and to improve the administration of justice is alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the interest of the National President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing him to file the present action. To be sure, members of the BAR, those in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National President to file the petition, has not shown any specific injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly represents, has sustained any form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed militarization of law enforcement which might threaten Philippine democratic institutions and may cause more harm than good in the long run. Not only is the presumed injury not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a direct and personal injury as a consequence of the questioned act, it does not possess the personality to assail the validity of the deployment of the Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the controversy. Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved.[16] In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people.[17] Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines under the aforestated provision. According to the IBP, no emergency

Page 125 of 217 exists that would justify the need for the calling of the military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that this Court review the sufficiency of the factual basis for said troop [Marine] deployment.[19] The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which are beyond the review powers of this Court. As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of judicial review. But, while this Court gives considerable weight to the parties formulation of the issues, the resolution of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that the power exercised by the President is the power to call out the armed forces, the Court is of the view that the power involved may be no more than the maintenance of peace and order and promotion of the general welfare. [20] For one, the realities on the ground do not show that there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus: More particularly, this case calls for the exercise of the Presidents powers as protector of the peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the Presidents exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. xxx[21] Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar result. We now address the Solicitor Generals argument that the issue involved is not susceptible to review by the judiciary because it involves a political question, and thus, not justiciable. As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review. [22] It pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are political questions. The reason is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being a function of the separation of powers, the courts will not normally interfere with the workings of another coequal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution. As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. Thus, if an issue is clearly identified by the text of the Constitution as matters for discr etionary action by a particular branch of government or to the people themselves then it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts undertaking independent resolution without express ing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarassment from multifarious pronouncements by various departments on the one question. The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[25] Under this definition, the Court cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court.[27] When political questions are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.[28] By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[29] Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of the President, it may look into the question of whether such exercise has been made in grave abuse of discretion.[30] A showing that plenary power is granted either department of government, may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy.[31]

Page 126 of 217 When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military. In the performance of this Courts duty of purposeful hesitation[32] before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Presidents judgment. To doubt is to sustain. There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. xxx The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus: xxx Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the Presidents action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.[33] That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit: FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-inChief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.

Page 127 of 217 When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody. xxx FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: The President may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger. MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by the First Sentence: The President....may call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ ofhabeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea? MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review. [34] The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court. Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the armed forces. The only criterion is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers. If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised. Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely a bused, the Presidents exercise of judgment deserves to be accorded respect from this Court. The President has already determined the necessity and factual basis for calling the armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation, especially in the light of present developments. The Court takes judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in violation of Section 3, Article II [36] of the Constitution.

Page 128 of 217 We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures.[38] It is their responsibility to direct and manage the deployment of the Marines.[39] It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it amount to an insidious incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.[41] In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP. Considering the above circumstances, the Marines render nothing more than assistance required in conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution. It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally civil functions. As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation, are: 1. Elections;[42] 2. Administration of the Philippine National Red Cross;[43] 3. Relief and rescue operations during calamities and disasters;[44] 4. Amateur sports promotion and development;[45] 5. Development of the culture and the arts;[46] 6. Conservation of natural resources;[47] 7. Implementation of the agrarian reform program;[48] 8. Enforcement of customs laws;[49] 9. Composite civilian-military law enforcement activities;[50] 10. Conduct of licensure examinations;[51] 11. Conduct of nationwide tests for elementary and high school students;[52] 12. Anti-drug enforcement activities;[53] 13. Sanitary inspections;[54] 14. Conduct of census work;[55] 15. Administration of the Civil Aeronautics Board;[56] 16. Assistance in installation of weather forecasting devices;[57] 17. Peace and order policy formulation in local government units.[58] This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned.[59] What we have here is mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy. In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide for the power to call, the use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those surrounding the present deployment of the Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A provision of the Act states: 1385. Use of Army and Air Force as posse comitatus

Page 129 of 217 Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62] To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US courts[63] apply the following standards, to wit: Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively? x x x When this concept is transplanted into the present legal context, we take it to mean that military involvement, even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied) Even if the Court were to apply the above rigid standards to the present case to determine whether there is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of the Solicitor General: 3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment of a handful of Philippine Marines constitutes no impermissible use of military power for civilian law enforcement.[71] It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The power to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule the Presidents determination of the factual basis for the calling of the Marines to prevent or suppress lawless violence. One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained that his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the shadows of violence and anarchy constantly lurk in their midst. WHEREFORE, premises considered, the petition is hereby DISMISSED.

SEPARATE OPINION

PUNO, J.: If the case at bar is significant, it is because of the government attempt to foist the political question doctrine to shield an executive act done in the exercise of the commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power of judicial review and weakened the checking authority of this Court over the Chief Executive when he exercises his commander-in-chief powers. The attempt should remind us of the tragedy that befell the country when this Court sought refuge in the political question doctrine and forfeited its most important role as protector of the civil and political rights of our people. The ongoing conflict in Mindanao may worsen and can force the Chief Executive to resort to the use of his greater commander-in-chief powers, hence, this Court should be extra cautious in assaying similar attempts. A laid back posture may not sit well with our people considering that the 1987 Constitution strengthened the checking powers of this Court and expanded its jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction xxx on the part of any branch or instrumentality of the Government. 1 The importance of the issue at bar includes this humble separate opinion. We can best perceive the different intersecting dimensions of the political question doctrine by viewing them from the broader canvass of history. Political questions are defined as those questions which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to w hich full

Page 130 of 217 discretionary authority has been delegated to the legislative or executive branch of government.2 They have two aspects: (1) those matters that are to be exercised by the people in their primary political capacity and (2) matters which have been specifically delegated to some other department or particular office of the government, with discretionary power to act. 3 The exercise of the discretionary power of the legislative or executive branch of government was often the area where the Court had to wrestle with the political question doctrine.4 A brief review of some of our case law will thus give us a sharper perspective of the political question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the Philippine Commission, suspended the privilege of the writ of habeas corpus in Cavite and Batangas based on a finding of open insurrection in said provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas corpus alleging that there was no open insurrection in Batangas. The issue to resolve was whether or not the judicial department may investigate the facts upon which the legislative (the Philippine Commission) and executive (the Governor-General) branches of government acted in suspending the privilege of the writ. The Court ruled that under our form of government, one department has no authority to inquire into the acts of another, which acts are performed within the discretion of the other department.6Surveying American law and jurisprudence, it held that whenever a statute gives discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the statute constitutes him the sole judge of the existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the privilege of the writ of habeas corpus, this power is exclusively within the discretion of the legislative and executive branches of government. The exercise of this discretion is conclusive upon the courts.8 The Court further held that once a determination is made by the executive and legislative departments that the conditions justifying the assailed acts exists, it will presume that the conditions continue until the same authority decide that they no longer exist.9 It adopted the rationale that the executive branch, thru its civil and military branches, are better situated to obtain information about peace and order from every corner of the nation, in contrast with the judicial department, with its very limited machinery.10 The seed of the political question doctrine was thus planted in Philippine soil. The doctrine barring judicial review because of the political question doctrine was next applied to the internal affairs of the legislature. The Court refused to interfere in the legislative exercise of disciplinary power over its own members. In the 1924 case of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a debate, and was suspended from office for one year. Senator Alejandrino filed a petition for mandamus and injunction to compel the Senate to reinstate him. The Court held that under the Jones Law, the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend an appointive member from the exercise of his office. While the Court found that the suspension was illegal, it refused to issue the writ of mandamus on the ground that "the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the exercise of their legislative powers by any judicial process."12 The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three senators-elect who had been prevented from taking their oaths of office by a Senate resolution repaired to this Court to compel their colleagues to allow them to occupy their seats contending that only the Electoral Tribunal had jurisdiction over contests relating to their election, returns and qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the inherent right of the legislature to determine who shall be admitted to its membership. In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the passage of the Parity amendment to the Constitution. If their votes had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either House of Congress to pass the amendment. The amendment was eventually submitted to the people for ratification. The Court declined to intervene and held that a proposal to amend the Constitution is a highly political function performed by Congress in its sovereign legislative capacity.15 In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of his detention ordered by the Senate for his refusal to answer questions put to him by members of one of its investigating committees. This Court refused to order his release holding that the process by which a contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative process and the legislature's exercise of its discretionary authority is not subject to judicial interference. In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line. Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious disorderly behavior for making a privilege speech imputing "malicious charges" against the President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court once more did not interfere with Congress' power to discipline its members. The contours of the political question doctrine have always been tricky. To be sure, the Court did not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his successor's title claiming that the latter had been elected without a quorum. The petition was initially dismissed on the ground that the selection of Senate President was an internal matter and not subject to judicial review.19 On reconsideration, however, the Court ruled that it could assume jurisdiction over the controversy in light of subsequent events justifying intervention among which was the existence of a quorum.20 Though the petition was ultimately dismissed, the Court declared respondent Cuenco as the legally elected Senate President. In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute involving the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor General's claim that the dispute involved a political question. Instead, it declared that the Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal and the exercise of its power thereon is subject to constitutional limitations which are mandatory in nature.22 It held that under the Constitution, the membership of the Senate Electoral Tribunal was designed to insure the exercise of judicial impartiality in

Page 131 of 217 the disposition of election contests affecting members of the lawmaking body.23 The Court then nullified the election to the Senate Electoral Tribunal made by Senators belonging to the party having the largest number of votes of two of their party members but purporting to act on behalf of the party having the second highest number of votes. In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress had formed the Commission on Appointments in accordance with the Constitution and found that it did not. It declared that the Commission on Appointments is a creature of the Constitution and its power does not come from Congress but from the Constitution. The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v. Comelec26 abandoned Mabanag v. LopezVito. The question of whether or not Congress, acting as a constituent assembly in proposing amendments to the Constitution violates the Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court ruled: "It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitutionwhich was being submitted to the people for ratification-satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus, we rejected the theory, advanced in these four cases, that the issues therein raised were political questions the determination of which is beyond judicial review. 27 The Court explained that the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. As a constituent assembly, the members of Congress derive their authority from the fundamental law and they do not have the final say on whether their acts are within or beyond constitutional limits.28 This ruling was reiterated in Tolentino which held that acts of a constitutional convention called for the purpose of proposing amendments to the Constitution are at par with acts of Congress acting as a constituent assembly.29 In sum, this Court brushed aside the political question doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislature.30 The Court hewed to the same line as regards the exercise of Executive power. Thus, the respect accorded executive discretion was observed in Severino v. Governor-General,31where it was held that the Governor-General, as head of the executive department, could not be compelled by mandamus to call a special election in the town of Silay for the purpose of electing a municipal president. Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary. It was held that when the Legislature conferred upon the Governor-General powers and duties, it did so for the reason that he was in a better position to know the needs of the country than any other member of the executive department, and with full confidence that he will perform such duties as his best judgment dictates.32 Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be compelled by mandamus to produce certain vouchers showing the various expenditures of the Independence Commission. Under the principle of separation of powers, it ruled that it was not intended by the Constitution that one branch of government could encroach upon the field of duty of the other. Each department has an exclusive field within which it can perform its part within certain discretionary limits.34 It observed that "the executive and legislative departments of government are frequently called upon to deal with what are known as political questions, with which the judicial department of government has no intervention. In all such questions, the courts uniformly refused to intervene for the purpose of directing or controlling the actions of the other department; such questions being many times reserved to those departments in the organic law of the state."35 In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief Executive from deporting an obnoxious alien whose continued presence in the Philippines was found by him to be injurious to the public interest. It noted that sudden and unexpected conditions may arise, growing out of the presence of untrustworthy aliens, which demand immediate action. The President's inherent power to deport undesirable aliens is universally denominated as political, and this power continues to exist for the preservation of the peace and domestic tranquility of the nation. 37 In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the President's appointing power. It held that the appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe qualifications to a given appointive office. We now come to the exercise by the President of his powers as Commander-in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief of the Armed Forces, the President has the power to determine whether war, in the legal sense, still continues or has terminated. It ruled that it is within the province of the political department and not of the judicial department of government to determine when war is at end. 39 In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the authority to decide whether the exigency has arisen requiring the suspension of the privilege belongs to the President and his decision is final and conclusive on the courts.41

Page 132 of 217 Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus was not a political question. According to the Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power to call out the militia which is a much broader power than suspension of the privilege of the writ; and (2) the privilege was suspended by the American Governor-General whose act, as representative of the sovereign affecting the freedom of its subjects, could not be equated with that of the President of the Philippines dealing with the freedom of the sovereign Filipino people. The Court declared that the power to suspend the privilege of the writ of habeas corpus is neither absolute nor unqualified because the Constitution sets limits on the exercise of executive discretion on the matter. These limits are: (1) that the privilege must not be suspended except only in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for the suspension shall exist. The extent of the power which may be inquired into by courts is defined by these limitations.43 On the vital issue of how the Court may inquire into the President's exercise of power, it ruled that the function of the Court is not to supplant but merely to check the Executive; to ascertain whether the President has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the question of whether the President did not act arbitrarily.44 Using this yardstick, the Court found that the President did not. The emergency period of the 1970's flooded the Court with cases which raised the political question defense. The issue divided the Court down the middle. Javellana v. Executive Secretary45 showed that while a majority of the Court held that the issue of whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a majority also ruled that the decisive issue of whether the 1973 Constitution had come into force and effect, with or without constitutional ratification, was a political question.46 The validity of the declaration of martial law by then President Marcos was next litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law. On whether the validity of the imposition of martial law was a political or justiciable question, the Court was almost evenly divided. One-half embraced the political question position and the other half subscribed to the justiciable position in Lansang. Those adhering to the political question doctrine used different methods of approach to it.48 In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas corpus. The Court found that the PCO had the function of validating a person's detention for any of the offenses covered in Proclamation No. 2045 which continued in force the suspension of the privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President was not subject to judicial inquiry.50 It went further by declaring that there was a need to re-examine Lansang with a view to reverting to Barcelon and Montenegro. It observed that in times of war or national emergency, the President must be given absolute control for the very life of the nation and government is in great peril. The President, it intoned, is answerable only to his conscience, the people, and God.51 But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire into every phase and aspect of a person's detention from the moment he was taken into custody up to the moment the court passes upon the merits of the petition. Only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been met.53 It is now history that the improper reliance by the Court on the political question doctrine eroded the people's faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers, particularly violations against human rights. The refusal of courts to be pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA. Two lessons were not lost to the members of the Constitutional Commission that drafted the 1987 Constitution. The first was the need to grant this Court the express power to review the exercise of the powers as commander-in-chief by the President and deny it of any discretion to decline its exercise. The second was the need to compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid back stance against acts constituting grave abuse of discretion on the part of any branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a member of the Constitutional Commission, worked for the insertion of the second paragraph of Section 1, Article VIII in the draft Constitution, 54 which reads: "Sec. 1. x x x. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The language of the provision clearly gives the Court the power to strike down acts amounting to grave abuse of discretion of both the legislative and executive branches of government. We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional history. The provision states: "Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial

Page 133 of 217 law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. x x x." It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces of the Philippines, may call out the armed forces subject to two conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for the exercise of the power and the objective sought to be attained by the exercise of the power. They define the constitutional parameters of the calling out power. Whether or not there is compliance with these parameters is a justiciable issue and is not a political question. I am not unaware that in the deliberations of the Constitutional Commission, Commissioner Bernas opined that the President's exercise of the "calling out power," unlike the suspension of the privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but a political question and therefore not subject to judicial review. It must be borne in mind, however, that while a member's opinion expressed on the floor of the Constitutional Convention is valuable, it is not necessarily expressive of the people's intent.55The proceedings of the Convention are less conclusive on the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, for in the latter case it is the intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of the people through the discussions and deliberations of their representatives.56 The conventional wisdom is that the Constitution does not derive its force from the convention which framed it, but from the people who ratified it, the intent to be arrived at is that of the people. 57 It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution expressly gives the Court the power to review the sufficiency of the factual bases used by the President in the suspension of the privilege of the writ of habeas corpus and the declaration of martial law. It does not follow, however, that just because the same provision did not grant to this Court the power to review the exercise of the calling out power by the President, ergo, this Court cannot pass upon the validity of its exercise. Given the light of our constitutional history, this express grant of power merely means that the Court cannot decline the exercise of its power because of the political question doctrine as it did in the past. In fine, the express grant simply stresses the mandatory duty of this Court to check the exercise of the commander-in-chief powers of the President. It eliminated the discretion of the Court not to wield its power of review thru the use of the political question doctrine. It may be conceded that the calling out power may be a "lesser power" compared to the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even then, its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the rights of our people protected by the Constitution cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground that they have lesser impact on the civil and political rights of our people. The exercise of the calling out power may be "benign" in the case at bar but may not be so in future cases. The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion in Lansang that it would be dangerous and misleading to push the political question doctrine too far, is apropos. It will not be complementary to the Court if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the "political" and the "justiciable. " 58 We should not water down the ruling that deciding whether a matter has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is a delicate exercise in constitutional interpretation, and is a responsibility of the Court as ultimate interpreter of the fundamental law .59 When private justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though questions of extreme political importance are necessarily involved.60 Every officer under a constitutional government must act according to law and subject to the controlling power of the people, acting through the courts, as well as through the executive and legislative. One department is just as representative of the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action.61 Thishistoric role of the Court is the foundation stone of a government of laws and not of men.62 I join the Decision in its result.

SEPARATE OPINION

Page 134 of 217 VITUG, J.: In the equation of judicial power, neither of two extremes - one totalistic and the other bounded - is acceptable nor ideal. The 1987 Constitution has introduced its definition of the term "judicial power" to be that which x x x includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandabl e and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government .1 It is not meant that the Supreme Court must be deemed vested with the awesome power of overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its mandate. But while this Court does not wield unlimited authority to strike down an act of its two co-equal branches of government, it must not wither under technical guise on its constitutionally ordained task to intervene, and to nullify if need be, any such act as and when it is attended by grave abuse of discretion amounting to lack or excess of jurisdiction. The proscription then against an interposition by the Court into purely political questions, heretofore known, no longer holds within that context. Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring opinion: "x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or agency of the government transcends the Constitution, not only in justiceable but political questions as well." 3 It is here when the Court must have to depart from the broad principle of separation of powers that disallows an intrusion by it in respect to the purely political decisions of its independent and coordinate agencies of government. The term grave abuse of discretion is long understood in our jurisprudence as being, and confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views, the act of the President in simply calling on the Armed Forces of the Philippines, an executive prerogative, to assist the Philippine National Police in "joint visibility patrols" in the metropolis does not, I believe, constitute grave abuse of discretion that would now warrant an exercise by the Supreme Court of its extraordinary power as so envisioned by the fundamental law. Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting: I concur in the opinion of the Court insofar as it holds petitioner to be without standing to question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar as the opinion dismisses the petition in this case on other grounds. I submit that judgment on the substantive constitutional issues raised by petitioner must await an actual case involving real parties with "injuries" to show as a result of the operation of the challenged executive action. While as an organization for the advancement of the rule of law petitioner has an interest in upholding the Constitution, its interest is indistinguishable from the interest of the rest of the citizenry and falls short of that which is necessary to give petitioner standing. As I have indicated elsewhere, a citizens' suit challenging the constitutionality of governmental action requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent nature; (2) there must be a causal connection between the injury and the conduct complained of; and (3) the injury is likely to be redressed by a favorable action by this Court. 1 The "injury in fact" test requires more than injury to a cognizable interest. It requires that the party seeking review be himself among those injured.2 My insistence on compliance with the standing requirement is grounded in the conviction that only a party injured by the operation of the governmental action challenged is in the best position to aid the Court in determining the precise nature of the problem presented. Many a time we have adverted to the power of judicial review as an awesome power not to be exercised save in the most exigent situation. For, indeed, sound judgment on momentous constitutional questions is not likely to be reached unless it is the result of a clash of adversary arguments which only parties with direct and specific interest in the outcome of the controversy can make. This is true not only when we strike down a law or official action but also when we uphold it. In this case, because of the absence of parties with real and substantial interest to protect, we do not have evidence on the effect of military presence in malls and commercial centers, i.e., whether such presence is coercive or benign. We do not know whether the presence of so many marines and policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment of troops to such places is not like parading them at the Luneta on Independence Day. Neither is it, however, like calling them out because of actual fighting or the outbreak of violence. We need to have evidence on these questions because, under the Constitution, the President's power to call out the armed forces in order to suppress lawless violence, invasion or rebellion is subject to the limitation that the exercise of this power is required in the interest of public safety.3 Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless violence, invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law (in case of invasion or rebellion), the

Page 135 of 217 exercise of the President's powers as commander-in-chief, requires proof - not mere assertion.4 As has been pointed out, "Standing is not `an ingenious academic exercise in the conceivable' . . . but requires . . . a factual showing of perceptible harm." 5 Because of the absence of such record evidence, we are left to guess or even speculate on these questions. Thus, at one point, the majority opinion says that what is involved here is not even the calling out of the armed forces but only the use of marines for law enforcement. (p. 13) At another point, however, the majority opinion somersaults and says that because of bombings perpetrated by lawless elements, the deployment of troops in shopping centers and public utilities is justified. (p. 24) We are likely to err in dismissing the suit brought in this case on the ground that the calling out of the military does not violate the Constitution, just as we are likely to do so if we grant the petition and invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital controversy can only impoverish the judicial process. That is why, as Justice Laurel emphasized in the Angara case, "this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented."6 We are told, however, that the issues raised in this case are of "paramount interest" to the nation. It is precisely because the issues raised are of paramount importance that we should all the more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough alone is a counsel of prudence. For these reasons and with due appreciation of the scholarly attention lavished by the majority opinion on the constitutional questions raised, I am constrained to limit my concurrence to the dismissal of this suit on the ground of lack of standing of petitioner and the consequent lack of an actual case or controversy.

TAXPAYERS SUIT ISAGANI CRUZ VS. SEC. OF ENVIRONMENT AND NATURAL RESOURCES
[G.R. No. 135385. December 6, 2000]
RESOLUTION PER CURIAM: Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules). In its resolution of September 29, 1998, the Court required respondents to comment.[1] In compliance, respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples (NCIP), the government agency created under the IPRA to implement its provisions, filed on October 13, 1998 their Comment to the Petition, in which they defend the constitutionality of the IPRA and pray that the petition be dismissed for lack of merit. On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources (DENR) and Secretary of the Department of Budget and Management (DBM) filed through the Solicitor General a consolidated Comment. The Solicitor General is of the view that the IPRA is partly unconstitutional on the ground that it grants ownership over natural resources to indigenous peoples and prays that the petition be granted in part. On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the leaders and members of 112 groups of indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene. They join the NCIP in defending the constitutionality of IPRA and praying for the dismissal of the petition. On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of parens patriae and that the State has the responsibility to protect and guarantee the rights of those who are at a serious disadvantage like indigenous peoples. For this reason it prays that the petition be dismissed. On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached Comment-in-Intervention. They agree with the NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray that the petition for prohibition and mandamus be dismissed. The motions for intervention of the aforesaid groups and organizations were granted. Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their respective memoranda in which they reiterate the arguments adduced in their earlier pleadings and during the hearing. Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on the ground that they amount to an unlawful deprivation of the States ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution: (1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in turn, defines ancestral lands;

Page 136 of 217 (2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public lands, bodies of water, mineral and other resources found within ancestral domains are private but community property of the indigenous peoples; (3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of a ncestral domains and ancestral lands; (4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral domains; (5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral lands; (6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction, development or exploration of minerals and other natural resources within the areas claimed to be their ancestral domains, and the right to enter into agreements with nonindigenous peoples for the development and utilization of natural resources therein for a period not exceeding 25 years, renewable for not more than 25 years; and (7) Section 58 which gives the indigenous peoples the responsib ility to maintain, develop, protect and conserve the ancestral domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or reforestation. [2] Petitioners also content that, by providing for an all-encompassing definition of ancestral domains and ancestral lands which might even include private lands found within said areas, Sections 3(a) and 3(b) violate the rights of private landowners.[3] In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and making customary law applicable to the settlement of disputes involving ancestral domains and ancestral lands on the ground that these provisions violate the due process clause of the Constitution.[4] These provisions are: (1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral domains and which vest on the NCIP the sole authority to delineate ancestral domains and ancestral lands; (2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an ancestral domain and upon notification to the following officials, namely, the Secretary of Environment and Natural Resources, Secretary of Interior and Local Governments, Secretary of Justice and Commissioner of the National Development Corporation, the jurisdiction of said officials over said area terminates; (3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall be applied first with respect to property rights, claims of ownership, hereditary succession and settlement of land disputes, and that any doubt or ambiguity in the interpretation thereof shall be resolved in favor of the indigenous peoples; (4) Section 65 which states that customary laws and practices shall be used to resolve disputes involving indigenous peoples; and (5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of the indigenous peoples.[5] Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1, series of 1998, which provides that the administrative relationship of the NCIP to the Office of the President is characterized as a lateral but autonomous relationship for purposes of policy and program coordination. They contend that said Rule infringes upon the Presidents power of control over executive departments under Section 17, Article VII of the Constitution. [6] Petitioners pray for the following: (1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions of R.A. 8371 are unconstitutional and invalid; (2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to cease and des ist from implementing the assailed provisions of R.A. 8371 and its Implementing Rules; (3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and Natural Resources to cease and desist from implementing Department of Environment and Natural Resources Circular No. 2, series of 1998; (4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease and desist from disbursing public funds for the implementation of the assailed provisions of R.A. 8371; and (5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural Resources to comply with his duty of carrying out the States constitutional mandate to control and supervise the exploration, development, utilization and conservation of Philippine natural resources.[7] After due deliberation on the petition, the members of the Court voted as follows: Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the IPRA which he contends should be interpreted as dealing with the large-scale exploitation of natural resources and should be read in conjunction with Section 2, Article

Page 137 of 217 XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have standing to question the constitutionality of R.A. 8371. Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of specific cases by those whose rights may have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug. As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED. Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug, Kapunan, Mendoza, and Panganiban. SO ORDERED.

SEPARATE OPINION

PUNO, J.:

PRECIS A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the Uses and Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge Richard Posner[1] wrote:[2] "Law is the most historically oriented, or if you like the most backward-looking, the most 'past-dependent,' of the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a method of recovering history. It is suspicious of innovation, discontinuities, 'paradigm shifts,' and the energy and brashness of youth. These ingrained attitudes are obstacles to anyone who wants to re-orient law in a more pragmatic direction. But, by the same token, pragmatic jurisprudence must come to terms with history. When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into the Philippine legal system which appear to collide with settled constitutional and jural precepts on state ownership of land and other natural resources. The sense and subtleties of this law cannot be appreciated without considering its distinct sociology and the labyrinths of its history. This Opinion attempts to interpret IPRA by discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural communities' right to their ancestral land but more importantly, to correct a grave historical injustice to our indigenous people. This Opinion discusses the following: I. The Development of the Regalian Doctrine in the Philippine Legal System. A. The Laws of the Indies B. Valenton v. Murciano C. The Public Land Acts and the Torrens System D. The Philippine Constitutions II. The Indigenous Peoples Rights Act (IPRA). A. Indigenous Peoples 1. Indigenous Peoples: Their History 2. Their Concept of Land III. The IPRA is a Novel Piece of Legislation.

Page 138 of 217 A. Legislative History IV. The Provisions of the IPRA Do Not Contravene the Constitution. A. Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute part of the land of the public domain. 1. The right to ancestral domains and ancestral lands: how acquired 2. The concept of native title (a) Cario v. Insular Government (b) Indian Title to land (c) Why the Cario doctrine is unique 3. The option of securing a torrens title to the ancestral land B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a limited form of ownership and does not include the right to alienate the same.

1. The indigenous concept of ownership and customary law C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in Section 2, Article XII of the 1987 Constitution. 1. The rights of ICCs/IPs over their ancestral domains and lands 2. The right of ICCs/IPs to develop lands and natural resources within the ancestral domains does not deprive the State of ownership over the natural resources, control and supervision in their development and exploitation. (a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section 7(a) of the law on ownership of ancestral domains and is ultra vires. (b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is allowed under Paragraph 3, Section 2, Article XII of the 1987 Consitution. (c) The large-scale utilization of natural resources in Section 57 of the IPRA may be harmonized with Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution. V. The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.

DISCUSSION

I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM. A. The Laws of the Indies The capacity of the State to own or acquire property is the state's power of dominium.[3] This was the foundation for the early Spanish decrees embracing the feudal theory of jura regalia. The "Regalian Doctrine" or jura regalia is a Western legal concept that was first introduced by the Spaniards into the country through the Laws of the Indies and the Royal Cedulas. The Laws of the Indies, i.e., more specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set the policy of the Spanish Crown with respect to the Philippine Islands in the following manner: "We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored to us as they belong to us, in order that after reserving before all what to us or to our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present condition, but also their future and their probable increase, and after distributing to the natives what may be necessary for tillage and

Page 139 of 217 pasturage, confirming them in what they now have and giving them more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we may wish. We therefore order and command that all viceroys and presidents of pretorial courts designate at such time as shall to them seem most expedient, a suitable period within which all possessors of tracts, farms, plantations, and estates shall exhibit to them and to the court officers appointed by them for this purpose, their title deeds thereto. And those who are in possession by virtue of proper deeds and receipts, or by virtue of just prescriptive right shall be protected, and all the rest shall be restored to us to be disposed of at our will."[4] The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands became the exclusive patrimony and dominion of the Spanish Crown. The Spanish Government took charge of distributing the lands by issuing royal grants and concessions to Spaniards, both military and civilian.[5] Private land titles could only be acquired from the government either by purchase or by the various modes of land grant from the Crown. [6] The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.[7] The Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as possessory claims. The law sought to register and tax lands pursuant to the Royal Decree of 1880. The Royal Decree of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as well as the Laws of the Indies, as already amended by previous orders and decrees.[8] This was the last Spanish land law promulgated in the Philippines. It required the "adjustment" or registration of all agricultural lands, otherwise the lands shall revert to the state. Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of the United States all rights, interests and claims over the national territory of the Philippine Islands. In 1903, the United States colonial government, through the Philippine Commission, passed Act No. 926, the first Public Land Act. B. Valenton v. Murciano In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.[9] Valenton resolved the question of which is the better basis for ownership of land: long-time occupation or paper title. Plaintiffs had entered into peaceful occupation of the subject land in 1860. Defendant's predecessor-in-interest, on the other hand, purchased the land from the provincial treasurer of Tarlac in 1892. The lower court ruled against the plaintiffs on the ground that they had lost all rights to the land by not objecting to the administrative sale. Plaintiffs appealed the judgment, asserting that their 30-year adverse possession, as an extraordinary period of prescription in the Partidas and the Civil Code, had given them title to the land as against everyone, including the State; and that the State, not owning the land, could not validly transmit it. The Court, speaking through Justice Willard, decided the case on the basis of "those special laws which from earliest time have regulated the disposition of the public lands in the colonies." [10] The question posed by the Court was: "Did these special laws recognize any right of prescription as against the State as to these lands; and if so, to what extent was it recognized?" Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in the Philippines. However, it was understood that in the absence of any special law to govern a specific colony, the Laws of the Indies would be followed. Indeed, in the Royal Order of July 5, 1862, it was decreed that until regulations on the subject could be prepared, the authorities of the Philippine Islands should follow strictly the Laws of the Indies, the Ordenanza of the Intendentes of 1786, and the Royal Cedula of 1754.[11] Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the court interpreted it as follows: "In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the Crown which have not been granted by Philip, or in his name, or by the kings who preceded him. This statement excludes the idea that there might be lands not so granted, that did not belong to the king. It excludes the idea that the king was not still the owner of all ungranted lands, because some private person had been in the adverse occupation of them. By the mandatory part of the law all the occupants of the public lands are required to produce before the authorities named, and within a time to be fixed by them, their title papers. And those who had good title or showed prescription were to be protected in their holdings. It is apparent that it was not the intention of the law that mere possession for a length of time should make the possessors the owners of the land possessed by them without any action on the part of the authorities." [12] The preamble stated that all those lands which had not been granted by Philip, or in his name, or by the kings who preceded him, belonged to the Crown.[13] For those lands granted by the king, the decree provided for a system of assignment of such lands. It also ordered that all possessors of agricultural land should exhibit their title deed, otherwise, the land would be restored to the Crown.[14] The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's principal subdelegate to issue a general order directing the publication of the Crown's instructions:

Page 140 of 217 "x x x to the end that any and all persons who, since the year 1700, and up to the date of the promulgation and publication of said order, shall have occupied royal lands, whether or not x x x cultivated or tenanted, may x x x appear and exhibit to said subdelegates the titles and patents by virtue of which said lands are occupied. x x x. Said subdelegates will at the same time warn the parties interested that in case of their failure to present their title deeds within the term designated, without a just and valid reason therefor, they will be deprived of and evicted from their lands, and they will be granted to others."[15] On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied" by private individuals in the Philippine Islands. Valenton construed these regulations together with contemporaneous legislative and executive interpretations of the law, and concluded that plaintiffs' case fared no better under the 1880 decree and other laws which followed it, than it did under the earlier ones. Thus as a general doctrine, the Court stated: "While the State has always recognized the right of the occupant to a deed if he proves a possession for a sufficient length of time, yet it has always insisted that he must make that proof before the proper administrative officers, and obtain from them his deed, and until he did that the State remained the absolute owner."[16] In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these Islands by which the plaintiffs could obtain the ownership of these lands by prescription, without any action by the State."[17] Valenton had no rights other than those which accrued to mere possession. Murciano, on the other hand, was deemed to be the owner of the land by virtue of the grant by the provincial secretary. In effect, Valenton upheld the Spanish concept of state ownership of public land. As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government from earliest times, requiring settlers on the public lands to obtain title deeds therefor from the State, has been continued by the American Government in Act No. 926."[18] C. The Public Land Acts and the Torrens System Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the Philippine Bill of 1902. The law governed the disposition of lands of the public domain. It prescribed rules and regulations for the homesteading, selling, and leasing of portions of the public domain of the Philippine Islands, and prescribed the terms and conditions to enable persons to perfect their titles to public lands in the Islands. It also provided for the "issuance of patents to certain native settlers upon public lands," for the establishment of town sites and sale of lots therein, for the completion of imperfect titles, and for the cancellation or confirmation of Spanish concessions and grants in the Islands." In short, the Public Land Act operated on the assumption that title to public lands in the Philippine Islands remained in the government;[19] and that the government's title to public land sprung from the Treaty of Paris and other subsequent treaties between Spain and the United States.[20] The term "public land" referred to all lands of the public domain whose title still remained in the government and are thrown open to private appropriation and settlement,[21] and excluded the patrimonial property of the government and the friar lands.[22] Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law was passed under the Jones Law. It was more comprehensive in scope but limited the exploitation of agricultural lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same privileges.[23] After the passage of the 1935 Constitution, Act 2874 was amended in 1936 by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the present Public Land Law and it is essentially the same as Act 2874. The main difference between the two relates to the transitory provisions on the rights of American citizens and corporations during the Commonwealth period at par with Filipino citizens and corporations.[24] Grants of public land were brought under the operation of the Torrens system under Act 496, or the Land Registration Law of 1903. Enacted by the Philippine Commission, Act 496 placed all public and private lands in the Philippines under the Torrens system. The law is said to be almost a verbatim copy of the Massachussetts Land Registration Act of 1898,[25] which, in turn, followed the principles and procedure of the Torrens system of registration formulated by Sir Robert Torrens who patterned it after the Merchant Shipping Acts in South Australia. The Torrens system requires that the government issue an official certificate of title attesting to the fact that the person named is the owner of the property described therein, subject to such liens and encumbrances as thereon noted or the law warrants or reserves. [26] The certificate of title is indefeasible and imprescriptible and all claims to the parcel of land are quieted upon issuance of said certificate. This system highly facilitates land conveyance and negotiation.[27] D. The Philippine Constitutions The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating objectives of the 1935 Constitutional Convention was the nationalization and conservation of the natural resources of the country.[28] There was an overwhelming sentiment in the Convention in favor of the principle of state ownership of natural resources and the adoption of the Regalian doctrine.[29] State ownership of natural resources was seen as a necessary starting point to secure recognition of the state's power to control their disposition, exploitation, development, or utilization.[30] The delegates to the Constitutional Convention very well knew that the concept of State ownership of land and natural resources was introduced by the Spaniards, however, they were not certain whether it was continued and applied by the Americans. To remove all doubts, the Convention approved the provision in the Constitution affirming the Regalian doctrine.[31]

Page 141 of 217 Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural Resources," reads as follows: "Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated,and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant." The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National Economy and the Patrimony of the Nation," to wit: "Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of agricultural, industrial or commercial, residential, and resettlement lands of the public domain, natural resources shall not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant." The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National Economy and Patrimony," to wit: "Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. x x x."

Simply stated, all lands of the public domain as well as all natural resources enumerated therein, whether on public or private land, belong to the State. It is this concept of State ownership that petitioners claim is being violated by the IPRA. II. THE INDIGENOUS PEOPLES RIGHTS ACT. Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/ Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997" or the IPRA. The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and possession of their ancestral domains and ancestral lands, and defines the extent of these lands and domains. The ownership given is the indigenous concept of ownership under customary law which traces its origin to native title. Other rights are also granted the ICCs/IPs, and these are: - the right to develop lands and natural resources; - the right to stay in the territories; - the right in case of displacement; - the right to safe and clean air and water;

Page 142 of 217 - the right to claim parts of reservations; - the right to resolve conflict;[32] - the right to ancestral lands which include a. the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned; b. the right to redemption for a period not exceeding 15 years from date of transfer, if the transfer is to a non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or if the transfer is for an unconscionable consideration.[33] Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and empowerment,[34] social justice and human rights,[35] the right to preserve and protect their culture, traditions, institutions and community intellectual rights, and the right to develop their own sciences and technologies.[36] To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples (NCIP). The NCIP is an independent agency under the Office of the President and is composed of seven (7) Commissioners belonging to ICCs/IPs from each of the ethnographic areas-- Region I and the Cordilleras; Region II; the rest of Luzon; Island groups including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao.[37] The NCIP took over the functions of the Office for Northern Cultural Communities and the Office for Southern Cultural Communities created by former President Corazon Aquino which were merged under a revitalized structure.[38] Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial powers.[39] The NCIP's decisions may be appealed to the Court of Appeals by a petition for review. Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized and/or unlawful intrusion upon ancestral lands and domains shall be punished in accordance with customary laws or imprisoned from 9 months to 12 years and/or fined from P100,000.00 to P500,000.00 and obliged to pay damages.[40] A. Indigenous Peoples The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that of "IPs" is the contemporary international language in the International Labor Organization (ILO) Convention 169 [41] and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.[42] ICCs/IPs are defined by the IPRA as: "Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples-- refer to a group of people or homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains." Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies who have continuously lived as an organized community on communally bounded and defined territory. These groups of people have actually occupied, possessed and utilized their territories under claim of ownership since time immemorial. They share common bonds of language, customs, traditions and other distinctive cultural traits, or, they, by their resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the time of conquest or colonization, who retain some or all of their own social, economic, cultural and political institutions but who may have been displaced from their traditional territories or who may have resettled outside their ancestral domains. 1. Indigenous Peoples: Their History Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of 110 tribes and are as follows:

Page 143 of 217 1. In the Cordillera Autonomous Region-- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela. 2. In Region III-- Aetas. 3. In Region IV-- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan. 4. In Region V-- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and Camarines Sur. 5. In Region VI-- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental; the Corolano and Sulod. 6. In Region VII-- Magahat of Negros Oriental and Eskaya of Bohol. 7. In Region IX-- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of Basilan, the Samal, Subanon and Yakat. 8. Region X-- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan provinces, and the Umayamnon of Agusan and Bukidnon. 9. In Region XI-- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur and South Cotabato. 10. In Region XII-- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon.[43] How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to 30,000 B.C. Before the time of Western contact, the Philippine archipelago was peopled largely by the Negritos, Indonesians and Malays.[44] The strains from these groups eventually gave rise to common cultural features which became the dominant influence in ethnic reformulation in the archipelago. Influences from the Chinese and Indian civilizations in the third or fourth millenium B.C. augmented these ethnic strains. Chinese economic and socio-cultural influences came by way of Chinese porcelain, silk and traders. Indian influence found their way into the religious-cultural aspect of pre-colonial society.[45] The ancient Filipinos settled beside bodies of water. Hunting and food gathering became supplementary activities as reliance on them was reduced by fishing and the cultivation of the soil.[46] From the hinterland, coastal, and riverine communities, our ancestors evolved an essentially homogeneous culture, a basically common way of life where nature was a primary factor. Community life throughout the archipelago was influenced by, and responded to, common ecology. The generally benign tropical climate and the largely uniform flora and fauna favored similarities, not differences.[47] Life was essentially subsistence but not harsh.[48] The early Filipinos had a culture that was basically Malayan in structure and form. They had languages that traced their origin to the Austronesian parent-stock and used them not only as media of daily communication but also as vehicles for the expression of their literary moods.[49] They fashioned concepts and beliefs about the world that they could not see, but which they sensed to be part of their lives.[50] They had their own religion and religious beliefs. They believed in the immortality of the soul and life after death. Their rituals were based on beliefs in a ranking deity whom they called Bathalang Maykapal, and a host of other deities, in the environmental spirits and in soul spirits. The early Filipinos adored the sun, the moon, the animals and birds, for they seemed to consider the objects of Nature as something to be respected. They venerated almost any object that was close to their daily life, indicating the importance of the relationship between man and the object of nature.[51] The unit of government was the "barangay," a term that derived its meaning from the Malay word "balangay," meaning, a boat, which transported them to these shores.[52] The barangay was basically a family-based community and consisted of thirty to one hundred families. Each barangay was different and ruled by a chieftain called a "dato." It was the chieftain's duty to rule and govern his subjects and promote their welfare and interests. A chieftain had wide powers for he exercised all the functions of government. He was the executive, legislator and judge and was the supreme commander in time of war.[53]

Page 144 of 217 Laws were either customary or written. Customary laws were handed down orally from generation to generation and constituted the bulk of the laws of the barangay. They were preserved in songs and chants and in the memory of the elder persons in the community.[54] The written laws were those that the chieftain and his elders promulgated from time to time as the necessity arose.[55] The oldest known written body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D. Other old codes are the Muslim Code of Luwaran and the Principal Code of Sulu.[56] Whether customary or written, the laws dealt with various subjects, such as inheritance, divorce, usury, loans, partnership, crime and punishment, property rights, family relations and adoption. Whenever disputes arose, these were decided peacefully through a court composed by the chieftain as "judge" and the barangay elders as "jury." Conflicts arising between subjects of different barangays were resolved by arbitration in which a board composed of elders from neutral barangays acted as arbiters.[57] Baranganic society had a distinguishing feature: the absence of private property in land. The chiefs merely administered the lands in the name of the barangay. The social order was an extension of the family with chiefs embodying the higher unity of the community. Each individual, therefore, participated in the community ownership of the soil and the instruments of production as a member of the barangay.[58] This ancient communalism was practiced in accordance with the concept of mutual sharing of resources so that no individual, regardless of status, was without sustenance. Ownership of land was non-existent or unimportant and the right of usufruct was what regulated the development of lands.[59]Marine resources and fishing grounds were likewise free to all. Coastal communities depended for their economic welfare on the kind of fishing sharing concept similar to those in land communities. [60] Recognized leaders, such as the chieftains and elders, by virtue of their positions of importance, enjoyed some economic privileges and benefits. But their rights, related to either land and sea, were subject to their responsibility to protect the communities from danger and to provide them with the leadership and means of survival.[61] Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented today by Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this jurisdiction: Sama, Tausug, Yakan and Subanon.[62] The Sultanate of Maguindanao spread out from Cotabato toward Maranao territory, now Lanao del Norte and Lanao del Sur.[63] The Muslim societies evolved an Asiatic form of feudalism where land was still held in common but was private in use. This is clearly indicated in the Muslim Code of Luwaran. The Code contains a provision on the lease of cultivated lands. It, however, has no provision for the acquisition, transfer, cession or sale of land.[64] The societies encountered by Magellan and Legaspi therefore were primitive economies where most production was geared to the use of the producers and to the fulfillment of kinship obligations. They were not economies geared to exchange and profit.[65] Moreover, the family basis of barangay membership as well as of leadership and governance worked to splinter the population of the islands into numerous small and separate communities.[66] When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos living in barangay settlements scattered along water routes and river banks. One of the first tasks imposed on the missionaries and the encomenderos was to collect all scattered Filipinos together in a reduccion.[67] As early as 1551, the Spanish government assumed an unvarying solicitous attitude towards the natives.[68] The Spaniards regarded it a sacred "duty to conscience and humanity to civilize these less fortunate people living in the obscurity of ignorance" and to accord them the "moral and material advantages" of community life and the "protection and vigilance afforded them by the same laws."[69] The Spanish missionaries were ordered to establish pueblos where the church and convent would be constructed. All the new Christian converts were required to construct their houses around the church and the unbaptized were invited to do the same.[70] With the reduccion, the Spaniards attempted to "tame" the reluctant Filipinos through Christian indoctrination using the convento/casa real/plaza complex as focal point. The reduccion, to the Spaniards, was a "civilizing" device to make the Filipinos law-abiding citizens of the Spanish Crown, and in the long run, to make them ultimately adopt Hispanic culture and civilization.[71] All lands lost by the old barangays in the process of pueblo organization as well as all lands not assigned to them and the pueblos, were now declared to be crown lands or realengas, belonging to the Spanish king. It was from the realengas that land grants were made to non-Filipinos.[72] The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of public domain were the most immediate fundamental results of Spanish colonial theory and law.[73] The concept that the Spanish king was the owner of everything of value in the Indies or colonies was imposed on the natives, and the natives were stripped of their ancestral rights to land.[74] Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified the Filipinos according to their religious practices and beliefs, and divided them into three types . First were the Indios, the Christianized Filipinos, who generally came from the lowland populations. Second, were the Moros or the Muslim communities, and third, were theinfieles or the indigenous communities.[75] The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards and was allowed certain status although below the Spaniards. The Moros andinfieles were regarded as the lowest classes.[76]

Page 145 of 217 The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from Manila and the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards did not pursue them into the deep interior. The upland societies were naturally outside the immediate concern of Spanish interest, and the cliffs and forests of the hinterlands were difficult and inaccessible, allowing the infieles, in effect, relative security.[77] Thus, the infieles, which were peripheral to colonial administration, were not only able to preserve their own culture but also thwarted the Christianization process, separating themselves from the newly evolved Christian community.[78] Their own political, economic and social systems were kept constantly alive and vibrant. The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of suspicion, fear, and hostility between the Christians on the one hand and the non-Christians on the other. Colonialism tended to divide and rule an otherwise culturally and historically related populace through a colonial system that exploited both the virtues and vices of the Filipinos.[79] President McKinley, in his instructions to the Philippine Commission of April 7, 1900, addressed the existence of the infieles: "In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government, and under which many of those tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal government should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs."[80] Placed in an alternative of either letting the natives alone or guiding them in the path of civilization, the American government chose "to adopt the latter measure as one more in accord with humanity and with the national conscience."[81] The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian Filipinos. The term "non-Christian" referred not to religious belief, but to a geographical area, and more directly, "to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities." [82] Like the Spaniards, the Americans pursued a policy of assimilation . In 1903, they passed Act No. 253 creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of the Interior, the BNCT's primary task was to conduct ethnographic research among unhispanized Filipinos, including those in Muslim Mindanao, with a "special view to determining the most practicable means for bringing about their advancement in civilization and prosperity." The BNCT was modeled after the bureau dealing with American Indians. The agency took a keen anthropological interest in Philippine cultural minorities and produced a wealth of valuable materials about them.[83] The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging issue then was the conservation of the national patrimony for the Filipinos. In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and complete manner the economic, social, moral and political advancement of the non-Christian Filipinos or national cultural minorities and to render real, complete, and permanent the integration of all said national cultural minorities into the body politic, creating theCommission on National Integration charged with said functions." The law called for a policy of integration of indigenous peoples into the Philippine mainstream and for this purpose created the Commission on National Integration (CNI).[84] The CNI was given, more or less, the same task as the BNCT during the American regime. The post-independence policy of integration was like the colonial policy of assimilation understood in the context of a guardian-ward relationship.[85] The policy of assimilation and integration did not yield the desired result. Like the Spaniards and Americans, government attempts at integration met with fierce resistance. Since World War II, a tidal wave of Christian settlers from the lowlands of Luzon and the Visayas swamped the highlands and wide open spaces in Mindanao. [86] Knowledge by the settlers of the Public Land Acts and the Torrens system resulted in the titling of several ancestral lands in the settlers' names. With government initiative and participation, this titling displaced several indigenous peoples from their lands. Worse, these peoples were also displaced by projects undertaken by the national government in the name of national development.[87] It was in the 1973 Constitution that the State adopted the following provision: "The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and implementation of State policies."[88] For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities" were addressed by the highest law of the Republic, and they were referred to as "cultural communities." More importantly this time, their "uncivilized" culture was given some recognition and their "customs, traditions, beliefs and interests" were to be considered by the State in the formulation and implementation of State policies. President Marcos abolished the CNI and transferred its functions to the Presidential Adviser on National Minorities (PANAMIN). The PANAMIN was tasked to integrate the ethnic groups that sought full integration into the larger

Page 146 of 217 community, and at the same time "protect the rights of those who wish to preserve their original lifeways beside the larger community."[89] In short, while still adopting the integration policy, the decree recognized the right of tribal Filipinos to preserve their way of life.[90] In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands Decree. The decree provided for the issuance of land occupancy certificates to members of the national cultural communities who were given up to 1984 to register their claims.[91] In 1979, the Commission on the Settlement of Land Problems was created under E.O. No. 561 which provided a mechanism for the expeditious resolution of land problems involving small settlers, landowners, and tribal Filipinos.[92] Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and Bontoks of the Cordillera region were displaced by the Chico River dam project of the National Power Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries Company (BUSCO). In Agusan del Sur, the National Development Company was authorized by law in 1979 to take approximately 40,550 hectares of land that later became the NDC-Guthrie plantation in Agusan del Sur. Most of the land was possessed by the Agusan natives.[93] Timber concessions, water projects, plantations, mining, and cattle ranching and other projects of the national government led not only to the eviction of the indigenous peoples from their land but also to the reduction and destruction of their natural environment.[94] The Aquino government signified a total shift from the policy of integration to one of preservation. Invoking her powers under the Freedom Constitution, President Aquino created the Office of Muslim Affairs, Office for Northern Cultural Communities and the Office for Southern Cultural Communities all under the Office of the President.[95] The 1987 Constitution carries at least six (6) provisions which insure the right of tribal Filipinos to preserve their way of life.[96] This Constitution goes further than the 1973 Constitution by expressly guaranteeing the rights of tribal Filipinos to their ancestral domains and ancestral lands. By recognizing their right to their ancestral lands and domains, the State has effectively upheld their right to live in a culture distinctly their own. 2. Their Concept of Land Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They are nonChristians. They live in less accessible, marginal, mostly upland areas. They have a system of self-government not dependent upon the laws of the central administration of the Republic of the Philippines. They follow ways of life and customs that are perceived as different from those of the rest of the population.[97] The kind of response the indigenous peoples chose to deal with colonial threat worked well to their advantage by making it difficult for Western concepts and religion to erode their customs and traditions. The "infieles societies" which had become peripheral to colonial administration, represented, from a cultural perspective, a much older base of archipelagic culture. The political systems were still structured on the patriarchal and kinship oriented arrangement of power and authority. The economic activities were governed by the concepts of an ancient communalism and mutual help. The social structure which emphasized division of labor and distinction of functions, not status, was maintained. The cultural styles and forms of life portraying the varieties of social courtesies and ecological adjustments were kept constantly vibrant.[98] Land is the central element of the indigenous peoples' existence. There is no traditional concept of permanent, individual, land ownership. Among the Igorots, ownership of land more accurately applies to the tribal right to use the land or to territorial control. The people are the secondary owners or stewards of the land and that if a member of the tribe ceases to work, he loses his claim of ownership, and the land reverts to the beings of the spirit world who are its true and primary owners. Under the concept of "trusteeship," the right to possess the land does not only belong to the present generation but the future ones as well.[99] Customary law on land rests on the traditional belief that no one owns the land except the gods and spirits, and that those who work the land are its mere stewards.[100] Customary law has a strong preference for communal ownership, which could either be ownership by a group of individuals or families who are related by blood or by marriage,[101] or ownership by residents of the same locality who may not be related by blood or marriage. The system of communal ownership under customary laws draws its meaning from the subsistence and highly collectivized mode of economic production. The Kalingas, for instance, who are engaged in team occupation like hunting, foraging for forest products, and swidden farming found it natural that forest areas, swidden farms, orchards, pasture and burial grounds should be communally-owned.[102] For the Kalingas, everybody has a common right to a common economic base. Thus, as a rule, rights and obligations to the land are shared in common. Although highly bent on communal ownership, customary law on land also sanctions individual ownership. The residential lots and terrace rice farms are governed by alimited system of individual ownership. It is limited because while the individual owner has the right to use and dispose of the property, he does not possess all the rights of an exclusive and full owner as defined under our Civil Code.[103] Under Kalinga customary law, the alienation of individually-owned land is strongly discouraged except in marriage and succession and except to meet sudden financial needs due to sickness, death in the family, or loss of crops.[104] Moreover, and to be alienated should first be offered to a clan-member before any village-member can purchase it, and in no case may land be sold to a non-member of the ili.[105]

Page 147 of 217 Land titles do not exist in the indigenous peoples' economic and social system. The concept of individual land ownership under the civil law is alien to them. Inherently colonial in origin, our national land laws and governmental policies frown upon indigenous claims to ancestral lands. Communal ownership is looked upon as inferior, if not inexistent.[106] III. THE IPRA IS A NOVEL PIECE OF LEGISLATION. A. The Legislative History of the IPRA It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371, the Indigenous Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two Bills-- Senate Bill No. 1728 and House Bill No. 9125. Principally sponsored by Senator Juan M. Flavier,[107] Senate Bill No. 1728 was a consolidation of four proposed measures referred to the Committees on Cultural Communities, Environment and Natural Resources, Ways and Means, as well as Finance. It adopted almost en toto the comprehensive version of Senate Bill Nos. 1476 and 1486 which was a result ofsix regional consultations and one national consultation with indigenous peoples nationwide. [108] At the Second Regular Session of the Tenth Congress, Senator Flavier, in his sponsorship speech, gave a background on the situation of indigenous peoples in the Philippines, to wit: "The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance and neglect of government controlled by the majority. Massive migration of their Christian brothers to their homeland shrunk their territory and many of the tribal Filipinos were pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural resources by the elite among the migrant population, they became marginalized. And the government has been an indispensable party to this insidious conspiracy against the Indigenous Cultural Communities (ICCs). It organized and supported the resettlement of people to their ancestral land, which was massive during the Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the traditional areas of the ICCs."[109] Senator Flavier further declared: "The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long before any central government was established. Their ancestors had territories over which they ruled themselves and related with other tribes. These territories- the land- include people, their dwelling, the mountains, the water, the air, plants, forest and the animals. This is their environment in its totality. Their existence as indigenous peoples is manifested in their own lives through political, economic, socio-cultural and spiritual practices. The IPs culture is the living and irrefutable proof to this. Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it. Otherwise, IPs shall cease to exist as distinct peoples."[110] To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based on two postulates: (1) the concept of native title; and (2) the principle of parens patriae. According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional laws" and jurisprudence passed by the State have "made exception to the doctrine." This exception was first laid down in the case of Cario v. Insular Government where: "x x x the court has recognized long occupancy of land by an indigenous member of the cultural communities as one of private ownership, which, in legal concept, is termed "native title." This ruling has not been overturned. In fact, it was affirmed in subsequent cases."[111] Following Cario, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao). These laws, explicitly or implicitly, and liberally or restrictively, recognized "native title" or "private right" and the existence of ancestral lands and domains. Despite the passage of these laws, however, Senator Flavier continued: "x x x the executive department of government since the American occupation has not implemented the policy. In fact, it was more honored in its breach than in its observance, its wanton disregard shown during the period unto the Commonwealth and the early years of the Philippine Republic when government organized and supported massive resettlement of the people to the land of the ICCs." Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their ancestral land. The bill was prepared also under the principle of parens patriae inherent in the supreme power of the State and deeply embedded in Philippine legal tradition. This principle mandates that persons suffering from serious disadvantage or handicap, which places them in a position of actual inequality in their relation or transaction with others, are entitled to the protection of the State.

Page 148 of 217 Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor and none against, with no abstention.[112] House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural Communities. It was originally authored and subsequently presented and defended on the floor by Rep. Gregorio Andolana of North Cotabato.[113] Rep. Andolana's sponsorhip speech reads as follows: "This Representation, as early as in the 8th Congress, filed a bill of similar implications that would promote, recognize the rights of indigenous cultural communities within the framework of national unity and development. Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain that these rights shall be well-preserved and the cultural traditions as well as the indigenous laws that remained long before this Republic was established shall be preserved and promoted. There is a need, Mr. Speaker, to look into these matters seriously and early approval of the substitute bill shall bring into reality the aspirations, the hope and the dreams of more than 12 million Filipinos that they be considered in the mainstream of the Philippine society as we fashion for the year 2000." [114] Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the Constitution. He also emphasized that the rights of IPs to their land was enunciated in Cario v. Insular Government which recognized the fact that they had vested rights prior to the establishment of the Spanish and American regimes.[115] After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was approved on Second Reading with no objections. IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION. A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples and Do Not Constitute Part of the Land of the Public Domain. The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral lands. Ancestral lands are not the same as ancestral domains. These are defined in Section 3 [a] and [b] of the Indigenous Peoples Right Act, viz: "Sec. 3 a) Ancestral Domains. -- Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators; b) Ancestral Lands.-- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-ininterest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots." Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with government and/or private individuals or corporations. Ancestral domains comprise lands, inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources. They also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.[116] Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains except that these are limited to lands and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group ownership. These lands include but are not limited to residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.[117]

Page 149 of 217 The procedures for claiming ancestral domains and lands are similar to the procedures embodied in Department Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the Department of Environment and Natural Resources (DENR) Angel Alcala.[118] DAO No. 2 allowed the delineation of ancestral domains by special task forces and ensured the issuance of Certificates of Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs. The identification and delineation of these ancestral domains and lands is a power conferred by the IPRA on the National Commission on Indigenous Peoples (NCIP).[119] The guiding principle in identification and delineation is selfdelineation.[120] This means that the ICCs/IPs have a decisive role in determining the boundaries of their domains and in all the activities pertinent thereto.[121] The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51 and 52 of the IPRA. The identification, delineation and certification of ancestral lands is in Section 53 of said law. Upon due application and compliance with the procedure provided under the law and upon finding by the NCIP that the application is meritorious, the NCIP shall issue a Certificate of Ancestral Domain Title (CADT) in the name of the community concerned.[122] The allocation of lands within the ancestral domain to any individual or indigenous corporate (family or clan) claimants is left to the ICCs/IPs concerned to decide in accordance with customs and traditions.[123] With respect to ancestral lands outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land Title (CALT).[124] CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of Deeds in the place where the property is situated.[125] (1) Right to Ancestral Domains and Ancestral Lands: How Acquired The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two modes: (1) by native title over both ancestral lands and domains; or (2) bytorrens title under the Public Land Act and the Land Registration Act with respect to ancestral lands only. (2) The Concept of Native Title Native title is defined as: "Sec. 3 [l]. Native Title-- refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest."[126] Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private ownership as far back as memory reaches. These lands are deemed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish Conquest. The rights of ICCs/IPs to their ancestral domains (which also include ancestral lands) by virtue of native title shall be recognized and respected.[127] Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.[128] Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The IPRA categorically declares ancestral lands and domains held by native title as never to have been public land. Domains and lands held under native title are, therefore, indisputably presumed to have never been public lands and are private. (a) Cario v. Insular Government[129] The concept of native title in the IPRA was taken from the 1909 case of Cario v. Insular Government.[130] Cario firmly established a concept of private land title that existed irrespective of any royal grant from the State. In 1903, Don Mateo Cario, an Ibaloi, sought to register with the land registration court 146 hectares of land in Baguio Municipality, Benguet Province. He claimed that this land had been possessed and occupied by his ancestors since time immemorial; that his grandfather built fences around the property for the holding of cattle and that his father cultivated some parts of the land. Cario inherited the land in accordance with Igorot custom. He tried to have the land adjusted under the Spanish land laws, but no document issued from the Spanish Crown.[131] In 1901, Cario obtained a possessory title to the land under the Spanish Mortgage Law.[132] The North American colonial government, however, ignored his possessory title and built a public road on the land prompting him to seek a Torrens title to his property in the land registration court. While his petition was pending, a U.S. military reservation[133] was proclaimed over his land and, shortly thereafter, a military detachment was detailed on the property with orders to keep cattle and trespassers, including Cario, off the land.[134] In 1904, the land registration court granted Cario's application for absolute ownership to the land. Both the Government of the Philippine Islands and the U.S. Government appealed to the C.F.I. of Benguet which reversed the land registration court and dismissed Cario's application. The Philippine Supreme Court[135] affirmed the C.F.I. by applying

Page 150 of 217 the Valenton ruling. Cario took the case to the U.S. Supreme Court.[136] On one hand, the Philippine government invoked the Regalian doctrine and contended that Cario failed to comply with the provisions of the Royal Decree of June 25, 1880, which required registration of land claims within a limited period of time. Cario, on the other, asserted that he was the absolute owner of the landjure gentium, and that the land never formed part of the public domain. In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held: "It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those in the same zone of civilization with themselves. It is true, also, that in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts, are matters for it to decide."[137] The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the new colonizer. Ultimately, the matter had to be decided under U.S. law. The Cario decision largely rested on the North American constitutionalist's concept of "due process" as well as the pronounced policy "to do justice to the natives."[138] It was based on the strong mandate extended to the Islands via the Philippine Bill of 1902 that "No law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." The court declared: "The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy land. It is obvious that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that, so far as consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902, chapter 1369, section 12 (32 Statutes at Large, 691), all the property and rights acquired there by the United States are to be administered 'for the benefit of the inhabitants thereof.' It is reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for its own. The same statute made a bill of rights, embodying the safeguards of the Constitution, and, like the Constitution, extends those safeguards to all. It provides that 'no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws.' In the light of the declaration that we have quoted from section 12, it is hard to believe that the United States was ready to declare in the next breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by "property" only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by native custom and by long association,-- of the profoundest factors in human thought,-- regarded as their own."[139] The Court went further: "[E]very presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the applicant the benefit of the doubt."[140] The court thus laid down the presumption of a certain title held (1) as far back as testimony or memory went, and (2) under a claim of private ownership. Land held by this title is presumed to "never have been public land." Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904 decision of Valenton v. Murciano. The U.S. Supreme Court found no proof that the Spanish decrees did not honor native title. On the contrary, the decrees discussed in Valenton appeared to recognize that the natives owned some land, irrespective of any royal grant. The Regalian doctrine declared in the preamble of the Recopilacion was all "theory and discourse" and it was observed that titles were admitted to exist beyond the powers of the Crown, viz: "If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad by that law as to satisfy us that he does not own the land. To begin with, the older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty clearly that the natives were recognized as owning some lands, irrespective of any royal grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines into trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3 Philippine 537, while it commands viceroys and others, when it seems proper, to call for the exhibition of grants, directs them to confirm those who hold by good grants or justa prescripcion. It is true that it begins by the characteristic assertion of feudal overlordship and the origin of all titles in the King or his predecessors. That was theory and discourse. The fact was that titles were admitted to exist that owed nothing to the powers of Spain beyond this recognition in their books." (Emphasis supplied).[141]

Page 151 of 217 The court further stated that the Spanish "adjustment" proceedings never held sway over unconquered territories. The wording of the Spanish laws were not framed in a manner as to convey to the natives that failure to register what to them has always been their own would mean loss of such land. The registration requirement was "not to confer title, but simply to establish it;" it was "not calculated to convey to the mind of an Igorot chief the notion that ancient family possessions were in danger, if he had read every word of it." By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank enough, however, to admit the possibility that the applicant might have been deprived of his land under Spanish law because of the inherent ambiguity of the decrees and concomitantly, the various interpretations which may be given them. But precisely because of the ambiguity and of the strong "due process mandate" of the Constitution, the court validated this kind of title. [142] This title was sufficient, even without government administrative action, and entitled the holder to a Torrens certificate. Justice Holmes explained: "It will be perceived that the rights of the applicant under the Spanish law present a problem not without difficulties for courts of a legal tradition. We have deemed it proper on that account to notice the possible effect of the change of sovereignty and the act of Congress establishing the fundamental principles now to be observed. Upon a consideration of the whole case we are of the opinion that law and justice require that the applicant should be granted what he seeks, and should not be deprived of what, by the practice and belief of those among whom he lived, was his property, through a refined interpretation of an almost forgotten law of Spain." [143] Thus, the court ruled in favor of Cario and ordered the registration of the 148 hectares in Baguio Municipality in his name.[144] said: Examining Cario closer, the U.S. Supreme Court did not categorically refer to the title it upheld as "native title." It simply

"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized as a savage tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish Laws, and which would have made his title beyond question good. Whatever may have been the technical position of Spain it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government seized his land. The argument to that effect seems to amount to a denial of native titles through an important part of the Island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce."[145] This is the only instance when Justice Holmes used the term "native title" in the entire length of the Cario decision. It is observed that the widespread use of the term "native title" may be traced to Professor Owen James Lynch, Jr., a Visiting Professor at the University of the Philippines College of Law from the Yale University Law School. In 1982, Prof. Lynch published an article in thePhilippine Law Journal entitled Native Title, Private Right and Tribal Land Law.[146] This article was made after Professor Lynch visited over thirty tribal communities throughout the country and studied the origin and development of Philippine land laws.[147] He discussed Cario extensively and used the term "native title" to refer to Cario's title as discussed and upheld by the U.S. Supreme Court in said case.

(b) Indian Title

In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined by Justice Holmes in Cario "is conceptually similar to "aboriginal title" of the American Indians.[148] This is not surprising, according to Prof. Lynch, considering that during the American regime, government policy towards ICCs/IPs was consistently made in reference to native Americans.[149] This was clearly demonstrated in the case of Rubi v. Provincial Board of Mindoro.[150] In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to remove the Mangyans from their domains and place them in a permanent reservation in Sitio Tigbao, Lake Naujan. Any Mangyan who refused to comply was to be imprisoned. Rubi and some Mangyans, including one who was imprisoned for trying to escape from the reservation, filed for habeas corpus claiming deprivation of liberty under the Board Resolution. This Court denied the petition on the ground of police power. It upheld government policy promoting the idea that a permanent settlement was the only successful method for educating the Mangyans, introducing civilized customs, improving their health and morals, and protecting the public forests in which they roamed.[151] Speaking through Justice Malcolm, the court said: "Reference was made in the President's instructions to the Commission to the policy adopted by the United States for the Indian Tribes. The methods followed by the Government of the Philippine Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States.[152]

Page 152 of 217 x x x.

As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservations, without any previous consultation as to their own wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the country. If any lesson can be drawn from the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as many forceful reasons exist for the segregation of the Manguianes in Mindoro as existed for the segregation of the different Indian tribes in the United States." [153] Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian reservation is a part of the public domain set apart by proper authority for the use and occupation of a tribe or tribes of Indians. [154] It may be set apart by an act of Congress, by treaty, or by executive order, but it cannot be established by custom and prescription. [155] Indian title to land, however, is not limited to land grants or reservations. It also covers the "aboriginal right of possession or occupancy."[156] The aboriginal right of possession depends on the actual occupancy of the lands in question by the tribe or nation as their ancestral home, in the sense that such lands constitute definable territory occupied exclusively by the particular tribe or nation.[157] It is a right which exists apart from any treaty, statute, or other governmental action, although in numerous instances treaties have been negotiated with Indian tribes, recognizing their aboriginal possession and delimiting their occupancy rights or settling and adjusting their boundaries.[158] American jurisprudence recognizes the Indians' or native Americans' rights to land they have held and occupied before the "discovery" of the Americas by the Europeans. The earliest definitive statement by the U.S. Supreme Court on the nature of aboriginal title was made in 1823 in Johnson & Graham's Lessee v. M'Intosh.[159] In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of two (2) Indian tribes. The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs being private persons. The only conveyance that was recognized was that made by the Indians to the government of the European discoverer. Speaking for the court, Chief Justice Marshall pointed out that the potentates of the old world believed that they had made ample compensation to the inhabitants of the new world by bestowing civilization and Christianity upon them; but in addition, said the court, they found it necessary, in order to avoid conflicting settlements and consequent war, to establish the principle that discovery gives title to the government by whose subjects, or by whose authority, the discovery was made, against all other European governments, which title might be consummated by possession.[160] The exclusion of all other Europeans gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. As regards the natives, the court further stated that: "Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the fundamental principle that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy."[161] Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire Indian land and extinguish Indian titles. Only to the discoverer-- whether to England, France, Spain or Holland-- did this right belong and not to any other nation or private person. The mere acquisition of the right nonetheless did not extinguish Indian claims to land. Rather, until the discoverer, by purchase or conquest, exercised its right, the concerned Indians were recognized as the "rightful occupants of the soil, with a legal as well as just claim to retain possession of it." Grants made by the discoverer to her subjects of lands occupied by the Indians were held to convey a title to the grantees, subject only to the Indian right of occupancy. Once the discoverer purchased the land from the Indians or conquered them, it was only then that the discoverer gained an absolute title unrestricted by Indian rights. The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title paramount to the title of the United States itself to other parties, saying: "It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right."[162] It has been said that the history of America, from its discovery to the present day, proves the universal recognition of this principle.[163]

Page 153 of 217 The Johnson doctrine was a compromise. It protected Indian rights and their native lands without having to invalidate conveyances made by the government to many U.S. citizens.[164] Johnson was reiterated in the case of Worcester v. Georgia.[165] In this case, the State of Georgia enacted a law requiring all white persons residing within the Cherokee nation to obtain a license or permit from the Governor of Georgia; and any violation of the law was deemed a high misdemeanor. The plaintiffs, who were white missionaries, did not obtain said license and were thus charged with a violation of the Act. The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties established between the United States and the Cherokee nation as well as the Acts of Congress regulating intercourse with them. It characterized the relationship between the United States government and the Indians as: "The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country. That power was naturally termed their protector. They had been arranged under the protection of Great Britain; but the extinguishment of the British power in their neighborhood, and the establishment of that of the United States in its place, led naturally to the declaration, on the part of the Cherokees, that they were under the protection of the United States, and of no other power. They assumed the relation with the United States which had before subsisted with Great Britain. This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning their national character, and submitting as subjects to the laws of a master." [166] It was the policy of the U.S. government to treat the Indians as nations with distinct territorial boundaries and recognize their right of occupancy over all the lands within their domains. Thus: "From the commencement of our government Congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States. x x x.

"The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to them, means "a people distinct from others." x x x.[167] The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States." [168] The discovery of the American continent gave title to the government of the discoverer as against all other European governments. Designated as the naked fee,[169] this title was to be consummated by possession and was subject to the Indian title of occupancy. The discoverer acknowledged the Indians' legal and just claim to retain possession of the land, the Indians being the original inhabitants of the land. The discoverer nonetheless asserted the exclusive right to acquire the Indians' land-- either by purchase, "defensive" conquest, or cession-- and in so doing, extinguish the Indian title. Only the discoverer could extinguish Indian title because it alone asserted ultimate dominion in itself. Thus, while the different nations of Europe respected the rights of the natives as occupants, they all asserted the ultimate dominion and title to be in themselves.[170] As early as the 19th century, it became accepted doctrine that although fee title to the lands occupied by the Indians when the colonists arrived became vested in the sovereign-- first the discovering European nation and later the original 13 States and the United States-- a right of occupancy in the Indian tribes was nevertheless recognized. The Federal Government continued the policy of respecting the Indian right of occupancy, sometimes called Indian title, which it accorded the protection of complete ownership.[171] But this aboriginal Indian interest simply constitutes "permission" from the whites to occupy the land, and means mere possession not specifically recognized as ownership by Congress.[172] It is clear that this right of occupancy based upon aboriginal possession is not a property right.[173] It is vulnerable to affirmative action by the federal government who, as sovereign, possessed exclusive power to extinguish the right of occupancy at will.[174] Thus, aboriginal title is not the same as legal title. Aboriginal title rests on actual, exclusive and continuous use and occupancy for a long time.[175] It entails that land owned by Indian title must be used within the tribe, subject to its laws and customs, and cannot be sold to another sovereign government nor to any citizen.[176] Such title as Indians have to possess and occupy land is in the tribe, and not in the individual Indian; the right of individual Indians to share in the tribal property usually depends upon tribal membership, the property of the tribe generally being held in communal ownership.[177] As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to designate such lands as are subject to sale or other disposal under general laws.[178] Indian land which has been abandoned is deemed to fall into the public domain.[179] On the other hand, an Indian reservation is a part of the public domain set apart for the use and occupation of a tribe of

Page 154 of 217 Indians.[180] Once set apart by proper authority, the reservation ceases to be public land, and until the Indian title is extinguished, no one but Congress can initiate any preferential right on, or restrict the nation's power to dispose of, them. [181] The American judiciary struggled for more than 200 years with the ancestral land claims of indigenous Americans.[182] And two things are clear. First, aboriginal title is recognized. Second, indigenous property systems are also recognized. From a legal point of view, certain benefits can be drawn from a comparison of Philippine IPs to native Americans.[183]Despite the similarities between native title and aboriginal title, however, there are at present some misgivings on whether jurisprudence on American Indians may be cited authoritatively in the Philippines. The U.S. recognizes the possessory rights of the Indians over their land; title to the land, however, is deemed to have passed to the U.S. as successor of the discoverer. The aboriginal title of ownership is not specifically recognized as ownership by action authorized by Congress. [184] The protection of aboriginal title merely guards against encroachment by persons other than the Federal Government. [185] Although there are criticisms against the refusal to recognize the native Americans' ownership of these lands,[186] the power of the State to extinguish these titles has remained firmly entrenched.[187] Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral domains and ancestral lands.[188] The IPRA, however, is still in its infancy and any similarities between its application in the Philippines vis--vis American Jurisprudence on aboriginal title will depend on the peculiar facts of each case.

(c) Why the Cario doctrine is unique

In the Philippines, the concept of native title first upheld in Cario and enshrined in the IPRA grants ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is private and was never public. Cario is the only case that specifically and categorically recognizes native title. The long line of cases citing Cario did not touch on native title and the private character of ancestral domains and lands. Cario was cited by the succeeding cases to support the concept of acquisitive prescription under the Public Land Act which is a different matter altogether. Under the Public Land Act, land sought to be registered must be public agricultural land. When the conditions specified in Section 48 [b] of the Public Land Act are complied with, the possessor of the land is deemed to have acquired, by operation of law, a right to a grant of the land.[189] The land ceases to be part of the public domain,[190] ipso jure,[191] and is converted to private property by the mere lapse or completion of the prescribed statutory period. It was only in the case of Oh Cho v. Director of Lands[192] that the court declared that the rule that all lands that were not acquired from the government, either by purchase or grant, belong to the public domain has an exception. This exception would be any land that should have been in the possession of an occupant and of his predecessors-in-interest since time immemorial. It is this kind of possession that would justify the presumption that the land had never been part of the public domain or that it had been private property even before the Spanish conquest.[193] Oh Cho, however, was decided under the provisions of the Public Land Act and Cario was cited to support the applicant's claim of acquisitive prescription under the said Act. All these years, Cario had been quoted out of context simply to justify long, continuous, open and adverse possession in the concept of owner of public agricultural land. It is this long, continuous, open and adverse possession in the concept of owner of thirty years both for ordinary citizens[194] and members of the national cultural minorities[195] that converts the land from public into private and entitles the registrant to a torrens certificate of title. (3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is Private. The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by the option given to individual ICCs/IPs over their individually-owned ancestrallands. For purposes of registration under the Public Land Act and the Land Registration Act, the IPRA expressly converts ancestral land into public agricultural land which may be disposed of by the State. The necessary implication is that ancestral land is private. It, however, has to be first converted to public agricultural land simply for registration purposes. To wit: "Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land Registration Act 496 -Individual members of cultural communities, with respect to their individually-owned ancestral lands who, by themselves or through their predecessors-in-interest, have been in continuous possession and occupation of the same in the concept of owner since time immemorial or for a period of not less than thirty (30) years immediately preceding the approval of this Act and uncontested by the members of the same ICCs/IPs shall have the option to secure title to their ancestral lands under the provisions of Commonwealth Act 141, as amended, or the Land Registration Act 496. For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually used for agricultural, residential, pasture, and tree farming purposes, including those with a slope of eighteen percent (18%) or more, are hereby classified as alienable and disposable agricultural lands. The option granted under this section shall be exercised within twenty (20) years from the approval of this Act."[196] ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned ancestral lands. This option is limited to ancestral lands only, not domains, and such lands must be individually, not communally, owned. Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through their predecessors-ininterest, have been in continuous possession and occupation of the same in the concept of owner since time immemorial [197] or for a

Page 155 of 217 period of not less than 30 years, which claims are uncontested by the members of the same ICCs/IPs, may be registered under C.A. 141, otherwise known as the Public Land Act, or Act 496, the Land Registration Act. For purposes of registration, the individuallyowned ancestral lands are classified as alienable and disposable agricultural lands of the public domain, provided, they are agricultural in character and are actually used for agricultural, residential, pasture and tree farming purposes. These lands shall be classified as public agricultural lands regardless of whether they have a slope of 18% or more. The classification of ancestral land as public agricultural land is in compliance with the requirements of the Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act, deals specifically with lands of the public domain. [198] Its provisions apply to those lands "declared open to disposition or concession" x x x "which have not been reserved for public or quasi-public purposes, nor appropriated by the Government, nor in any manner become private property, nor those on which a private right authorized and recognized by this Act or any other valid law x x x or which having been reserved or appropriated, have ceased to be so." [199] Act 496, the Land Registration Act, allows registration only of private lands and public agricultural lands. Since ancestral domains and lands are private, if the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496, the IPRA itself converts his ancestral land, regardless of whether the land has a slope of eighteen per cent (18%) or over,[200] from private to public agricultural land for proper disposition. The option to register land under the Public Land Act and the Land Registration Act has nonetheless a limited period. This option must be exercised within twenty (20) years from October 29, 1997, the date of approval of the IPRA. Thus, ancestral lands and ancestral domains are not part of the lands of the public domain. They are private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and Patrimony of the 1987 Constitution classifies lands of the public domain into four categories: (a) agricultural, (b) forest or timber, (c) mineral lands, and (d) national parks. Section 5of the same Article XII mentions ancestral lands and ancestral domains but it does not classify them under any of the said four categories. To classify them as public lands under any one of the four classes will render the entire IPRA law a nullity. The spirit of the IPRA lies in the distinct concept of ancestral domains and ancestral lands. The IPRA addresses the major problem of the ICCs/IPs which is loss of land. Land and space are of vital concern in terms of sheer survival of the ICCs/IPs.[201] The 1987 Constitution mandates the State to "protect the rights of indigenous cultural communities to their ancestral lands" and that "Congress provide for the applicability of customary laws x x x in determining the ownership and extent of ancestral domain."[202] It is the recognition of the ICCs/IPs distinct rights of ownership over their ancestral domains and lands that breathes life into this constitutional mandate. B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited form of ownership and does not include the right to alienate the same. Registration under the Public Land Act and Land Registration Act recognizes the concept of ownership under the civil law. This ownership is based on adverse possession for a specified period, and harkens to Section 44 of the Public Land Act on administrative legalization (free patent) of imperfect or incomplete titles and Section 48 (b) and (c) of the same Act on the judicial confirmation of imperfect or incomplete titles. Thus: "Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four hectares and who since July fourth, 1926 or prior thereto, has continuously occupied and cultivated, either by himself or through his predecessors-in-interest, a tract or tracts of agricultural public lands subject to disposition, or who shall have paid the real estate tax thereon while the same has not been occupied by any person shall be entitled, under the provisions of this chapter, to have a free patent issued to him for such tract or tracts of such land not to exceed twenty-four hectares. A member of the national cultural minorities who has continuously occupied and cultivated, either by himself or through his predecessors-in-interest, a tract or tracts of land, whether disposable or not since July 4, 1955, shall be entitled to the right granted in the preceding paragraph of this section: Provided, That at the time he files his free patent application he is not the owner of any real property secured or disposable under the provision of the Public Land Law.[203] x x x.

"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain or claiming to own any such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the Court of First Instance of the province where the land is located for confirmation of their claims and the issuance of a certificate of title therefor, under the Land Registration Act, to wit: (a) [perfection of Spanish titles] xxx. (b) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive, and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition or ownership, for at least thirty years immediately preceding the filing of the application for confirmation of title except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this Chapter. (c) Members of the national cultural minorities who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of lands of the public domain suitable to

Page 156 of 217 agriculture, whether disposable or not, under a bona fide claim of ownership for at least 30 years shall be entitled to the rights granted in sub-section (b) hereof."[204] Registration under the foregoing provisions presumes that the land was originally public agricultural land but because of adverse possession since July 4, 1955 (free patent) or at least thirty years (judicial confirmation), the land has become private. Open, adverse, public and continuous possession is sufficient, provided, the possessor makes proper application therefor. The possession has to be confirmed judicially or administratively after which a torrens title is issued. A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of ownership under the civil law. The Civil Code of the Philippines defines ownership in Articles 427, 428 and 429. This concept is based on Roman Law which the Spaniards introduced to the Philippines through the Civil Code of 1889. Ownership, under Roman Law, may be exercised over things or rights. It primarily includes the right of the owner to enjoy and dispose of the thing owned. And the right to enjoy and dispose of the thing includes the right to receive from the thing what it produces, [205] the right to consume the thing by its use,[206] the right to alienate, encumber, transform or even destroy the thing owned,[207] and the right to exclude from the possession of the thing owned by any other person to whom the owner has not transmitted such thing. [208] 1. The Indigenous Concept of Ownership and Customary Law. Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes theindigenous concept of ownership of the ICCs/IPs over their ancestral domain. Thus: "Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICCs/IPs private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource rights." The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the indigenous concept of ownership. This concept maintains the view that ancestral domains are the ICCs/IPs private but community property. It is private simply because it is not part of the public domain. But its private character ends there. The ancestral domain is owned in common by the ICCs/IPs and not by one particular person. The IPRA itself provides that areas within the ancestral domains, whether delineated or not, are presumed to be communally held. [209] These communal rights, however, are not exactly the same as co-ownership rights under the Civil Code.[210] Co-ownership gives any co-owner the right to demand partition of the property held in common. The Civil Code expressly provides that "[n]o co-owner shall be obliged to remain in the co-ownership." Each co-owner may demand at any time the partition of the thing in common, insofar as his share is concerned.[211] To allow such a right over ancestral domains may be destructive not only of customary law of the community but of the very community itself.[212] Communal rights over land are not the same as corporate rights over real property, much less corporate condominium rights. A corporation can exist only for a maximum of fifty (50) years subject to an extension of another fifty years in any single instance.[213] Every stockholder has the right to disassociate himself from the corporation. [214] Moreover, the corporation itself may be dissolved voluntarily or involuntarily.[215] Communal rights to the land are held not only by the present possessors of the land but extends to all generations of the ICCs/IPs, past, present and future, to the domain. This is the reason why the ancestral domain must be kept within the ICCs/IPs themselves. The domain cannot be transferred, sold or conveyed to other persons. It belongs to the ICCs/IPs as a community. Ancestral lands are also held under the indigenous concept of ownership. The lands are communal. These lands, however, may be transferred subject to the following limitations: (a) only to the members of the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c) subject to the right of redemption of the ICCs/IPs for a period of 15 years if the land was transferred to a non-member of the ICCs/IPs. Following the constitutional mandate that "customary law govern property rights or relations in determining the ownership and extent of ancestral domains,"[216] the IPRA, by legislative fiat, introduces a new concept of ownership. This is a concept that has long existed under customary law.[217] Custom, from which customary law is derived, is also recognized under the Civil Code as a source of law. [218] Some articles of the Civil Code expressly provide that custom should be applied in cases where no codal provision is applicable. [219] In other words, in the absence of any applicable provision in the Civil Code, custom, when duly proven, can define rights and liabilities.[220] Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies to ICCs/IPs. Its recognition does not depend on the absence of a specific provision in the civil law. The indigenous concept of ownership under customary law is specifically acknowledged and recognized, and coexists with the civil law concept and the laws on land titling and land registration.[221] To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is merely a "formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit: "Sec. 11. Recognition of Ancestral Domain Rights.-- The rights of ICCs/IPs to their ancestral domains by virtue of Native Title shall be recognized and respected. Formal recognition, when solicited by ICCs/IPs concerned shall be embodied in a Certificate of Ancestral Domain Title, which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated."

Page 157 of 217 The moral import of ancestral domain, native land or being native is "belongingness" to the land, being people of the land-- by sheer force of having sprung from the land since time beyond recall, and the faithful nurture of the land by the sweat of one's brow. This is fidelity of usufructuary relation to the land-- the possession of stewardship through perduring, intimate tillage, and the mutuality of blessings between man and land; from man, care for land; from the land, sustenance for man.[222] C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in Section 2, Article XII of the 1987 Constitution. 1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands. Section 7 provides for the rights over ancestral domains: "Sec. 7. Rights to Ancestral Domains.-- The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights include: a) Right of Ownership.- The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains; b) Right to Develop Lands and Natural Resources.-- Subject to Section 56 hereof, the right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;" c) Right to Stay in the Territories.-- The right to stay in the territory and not to be removed therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain. x x x; d) Right in Case of Displacement.-- In case displacement occurs as a result of natural catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support systems: x x x; e) Right to Regulate the Entry of Migrants.-- Right to regulate the entry of migrant settlers and organizations into their domains; f) Right to Safe and Clean Air and Water.--For this purpose, the ICCs/IPs shall have access to integrated systems for the management of their inland waters and air space; g) Right to Claim Parts of Reservations.-- The right to claim parts of the ancestral domains which have been reserved for various purposes, except those reserved and intended for common and public welfare and service; h) Right to Resolve Conflict.-- Right to resolve land conflicts in accordance with customary laws of the area where the land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the Courts of Justice whenever necessary." Section 8 provides for the rights over ancestral lands: "Sec. 8. Rights to Ancestral Lands.-- The right of ownership and possession of the ICCs/IPs to their ancestral lands shall be recognized and protected. a) Right to transfer land/property.-- Such right shall include the right to transfer land or property rights to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned. b) Right to Redemption.-- In cases where it is shown that the transfer of land/property rights by virtue of any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15) years from the date of transfer." Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which covers (a) lands, (b) bodies of water traditionally and actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional hunting and fishing grounds, and (e) all improvements made by them at any time within the domains. The right of ownership includes the following rights: (1) the right to develop lands and natural resources; (b) the right to stay in the territories; (c) the right to resettlement in case of displacement;

Page 158 of 217 (d) the right to regulate the entry of migrants; (e) the right to safe and clean air and water; (f) the right to claim parts of the ancestral domains as reservations; and (g) the right to resolve conflict in accordance with customary laws. Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains, Section 8 gives the ICCs/IPs also the right to transfer the land or property rights to members of the same ICCs/IPs or non-members thereof. This is in keeping with the option given to ICCs/IPs to secure a torrens title over the ancestral lands, but not to domains. 2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains Does Not Deprive the State of Ownership Over the Natural Resources and Control and Supervision in their Development and Exploitation. The Regalian doctrine on the ownership, management and utilization of natural resources is declared in Section 2, Article XII of the 1987 Constitution, viz: "Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or, it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for largescale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the state shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution."[223] All lands of the public domain and all natural resources-- waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources-- are owned by the State. The Constitution provides that in the exploration, development and utilization of these natural resources, the State exercises full control and supervision, and may undertake the same in four (4) modes: 1. The State may directly undertake such activities; or 2. The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations; 3. Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens; 4. For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. As owner of the natural resources, the State is accorded primary power and responsibility in the exploration, development and utilization of these natural resources . The State may directly undertake the exploitation and development by itself, or, it may allow participation by the private sector through co-production,[224] joint venture,[225] or production-sharing agreements.[226] These agreements may be for a period of 25 years, renewable for another 25 years. The State, through Congress, may allow the small-scale utilization of natural resources by Filipino citizens. For the large-scale exploration of these resources, specifically minerals, petroleum and other mineral oils, the State, through the President, may enter into technical and financial assistance agreements with foreign-owned corporations. Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991 (R.A. 7076) the three types of agreements, i.e., co-production, joint venture or production-sharing, may apply to both large-scale[227] and small-scale mining.[228] "Small-scale mining" refers to "mining activities which rely heavily on manual labor using simple implements and methods and do not use explosives or heavy mining equipment." [229] Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the natural resources within their ancestral domains. The right of ICCs/IPs in their ancestral domains includes ownership, but this "ownership" is expressly defined and limited in Section 7 (a) as:

Page 159 of 217 "Sec. 7. a) Right of ownership-- The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;" The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains." It will be noted that this enumeration does not mention bodies of water not occupied by the ICCs/IPs, minerals, coal, wildlife, flora andfauna in the traditional hunting grounds, fish in the traditional fishing grounds, forests or timber in the sacred places, etc. and all other natural resources found within the ancestral domains. Indeed, the right of ownership under Section 7 (a) does not cover "waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests ortimber, wildlife, flora and fauna and all other natural resources" enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State. The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies with the Regalian doctrine. (a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of the IPRA And is Unconstitutional. The Rules Implementing the IPRA[230] in Section 1, Part II, Rule III reads: "Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural resources and all improvements made by them at any time within the ancestral domains/ lands. These rights shall include, but not limited to, the right over the fruits, the right to possess, the right to use, right to consume, right to exclude and right to recover ownership, and the rights or interests over land and natural resources. The right to recover shall be particularly applied to lands lost through fraud or any form or vitiated consent or transferred for an unconscionable price." Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and natural resources." The term "natural resources" is not one of those expressly mentioned in Section 7 (a) of the law. Our Constitution and jurisprudence clearly declare that the right to claim ownership over land does not necessarily include the right to claim ownership over the natural resources found on or under the land.[231] The IPRA itself makes a distinction between land and natural resources. Section 7 (a) speaks of the right of ownership only over the land within the ancestral domain. It is Sections 7 (b) and 57 of the law that speak of natural resources, and these provisions, as shall be discussed later, do not give the ICCs/IPs the right of ownership over these resources. The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and categorically challenged by petitioners. Petitioners actually assail the constitutionality of the Implementing Rules in general.[232] Nevertheless, to avoid any confusion in the implementation of the law, it is necessary to declare that the inclusion of "natural resources" in Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section 7 (b) of the law and is contrary to Section 2, Article XII of the 1987 Constitution. (b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under Paragraph 3, Section 2 of Article XII of the Constitution. Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants the ICCs/IPs the right to manage them, viz: "Sec. 7 (b) Right to Develop Lands and Natural Resources.-- Subject to Section 56 hereof, right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;" The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the following rights: a) the right to develop, control and use lands and territories traditionally occupied; b) the right to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; c) the right to benefit and share the profits from the allocation and utilization of the natural resources found therein; d) the right to negotiate the terms and conditions for the exploration of natural resources for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws;

Page 160 of 217 e) the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; f) the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights.[233] Ownership over the natural resources in the ancestral domains remains with the State and the ICCs/IPs are merely granted the right to "manage and conserve" them for future generations, "benefit and share" the profits from their allocation and utilization, and "negotiate the terms and conditions for their exploration" for the purpose of "ensuring ecological and environmental protection and conservation measures." It must be noted that the right to negotiate the terms and conditions over the natural resources covers only their exploration which must be for the purpose of ensuring ecological and environmental protection of, and conservation measures in the ancestral domain. It does not extend to the exploitation and development of natural resources. Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or stewardship . For the ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the terms for their exploration. At the same time, however, the ICCs/IPs must ensure that the natural resources within their ancestral domains are conserved for future generations and that the "utilization" of these resources must not harm the ecology and environment pursuant to national and customary laws.[234] The limited rights of "management and use" in Section 7 (b) must be taken to contemplate small-scale utilization of natural resources as distinguished from large-scale. Small-scale utilization of natural resources is expressly allowed in the third paragraph of Section 2, Article XII of the Constitution "in recognition of the plight of forest dwellers, gold panners, marginal fishermen and others similarly situated who exploit our natural resources for their daily sustenance and survival."[235] Section 7 (b) also expressly mandates the ICCs/IPs to manage and conserve these resources and ensure environmental and ecological protection within the domains, which duties, by their very nature, necessarily reject utilization in a large-scale. (c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution. Section 57 of the IPRA provides: "Sec. 57. Natural Resources within Ancestral Domains.-- The ICCs/IPs shall have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision-making process, has agreed to allow such operation: Provided finally, That the NCIP may exercise visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under the same contract." Section 57 speaks of the "harvesting, extraction, development or exploitation of natural resources within ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The terms"harvesting, extraction, development or exploitation" of any natural resources within the ancestral domains obviously refer to large-scale utilization. It is utilization not merely for subsistence but for commercial or other extensive use that require technology other than manual labor.[236] The law recognizes the probability of requiring a non-member of the ICCs/IPs to participate in the development and utilization of the natural resources and thereby allows such participation for a period of not more than 25 years, renewable for another 25 years. This may be done on condition that a formal written agreement be entered into by the non-member and members of the ICCs/IPs. Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural resources. Instead, the law only grants the ICCs/IPs "priority rights" in the development or exploitation thereof. Priority means giving preference. Having priority rights over the natural resources does not necessarily mean ownership rights. The grant of priority rights implies that there is a superior entity that owns these resources and this entity has the power to grant preferential rights over the resources to whosoever itself chooses. Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said doctrine that all natural resources found within the ancestral domains belong to the State. It incorporates by implication the Regalian doctrine, hence, requires that the provision be read in the light of Section 2, Article XII of the 1987 Constitution. Interpreting Section 2, Article XII of the 1987 Constitution[237] in relation to Section 57 of IPRA, the State, as owner of these natural resources, may directly undertake the development and exploitation of the natural resources by itself, or in the alternative, it may recognize the priority rights of the ICCs/IPs as owners of the land on which the natural resources are found by entering into a co-production, joint venture, or production-sharing agreement with them. The State may likewise enter into any of said agreements with a non-member of the ICCs/IPs, whether natural or juridical, or enter into agreements with foreign-owned corporations involving either technical or financial assistance for the large-scale exploration, development and utilization of minerals, petroleum, and other mineral oils, or allow such non-member to participate in its agreement with the ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP member, the National Commission on Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the agreement shall be protected. The agreement shall be for a period of 25 years, renewable for another 25 years. To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State, as owner of these resources, has four (4) options: (1) it may, of and by itself, directly undertake the development and exploitation of the natural

Page 161 of 217 resources; or (2) it may recognize the priority rights of the ICCs/IPs by entering into an agreement with them for such development and exploitation; or (3) it may enter into an agreement with a non-member of the ICCs/IPs, whether natural or juridical, local or foreign; or (4) it may allow such non-member to participate in the agreement with the ICCs/IPs. The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral domains merely gives the ICCs/IPs, as owners and occupants of the land on which the resources are found, the right to the small-scale utilization of these resources, and at the same time, a priority in their large-scale development and exploitation. Section 57 does not mandate the State to automatically give priority to the ICCs/IPs. The State has several options and it is within its discretion to choose which option to pursue. Moreover, there is nothing in the law that gives the ICCs/IPs the right to solely undertake the large-scale development of the natural resources within their domains. The ICCs/IPs must undertake such endeavour always under State supervision or control. This indicates that the State does not lose control and ownership over the resources even in their exploitation. Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs who, as actual occupants of the land where the natural resources lie, have traditionally utilized these resources for their subsistence and survival. Neither is the State stripped of ownership and control of the natural resources by the following provision: "Section 59. Certification Precondition.-- All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing or granting any concession, license or lease, or entering into any production-sharing agreement. without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of the ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process." Concessions, licenses, lease or production-sharing agreements for the exploitation of natural resources shall not be issued, renewed or granted by all departments and government agencies without prior certification from the NCIP that the area subject of the agreement does not overlap with any ancestral domain. The NCIP certification shall be issued only after a field-based investigation shall have been conducted and the free and prior informed written consent of the ICCs/IPs obtained. Non-compliance with the consultation requirement gives the ICCs/IPs the right to stop or suspend any project granted by any department or government agency. As its subtitle suggests, this provision requires as a precondition for the issuance of any concession, license or agreement over natural resources, that a certification be issued by the NCIP that the area subject of the agreement does not lie within any ancestral domain. The provision does not vest the NCIP with power over the other agencies of the State as to determine whether to grant or deny any concession or license or agreement. It merely gives the NCIP the authority to ensure that the ICCs/IPs have been informed of the agreement and that their consent thereto has been obtained. Note that the certification applies to agreements over natural resources that do not necessarily lie within the ancestral domains. For those that are found within the said domains, Sections 7(b) and 57 of the IPRA apply. V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS INTERNATIONAL MOVEMENT. The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to prehistoric times. The movement received a massive impetus during the 1960's from two sources. First, the decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling their own destinies. Second, the right of self-determination was enshrined in the UN Declaration on Human Rights.[238] The rise of the civil rights movement and anti-racism brought to the attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights and freedoms. In 1974 and 1975, international indigenous organizations were founded,[239] and during the 1980's, indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the first Asians to take part in the international indigenous movement. It was the Cordillera People's Alliance that carried out successful campaigns against the building of the Chico River Dam in 1981-82 and they have since become one of the best-organized indigenous bodies in the world.[240] Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of the increased publicity focused on the continuing disrespect for indigenous human rights and the destruction of the indigenous peoples' environment, together with the national governments' inability to deal with the situation.[241] Indigenous rights came as a result of both human rights and environmental protection, and have become a part of today's priorities for the international agenda.[242] International institutions and bodies have realized the necessity of applying policies, programs and specific rules concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a result of the dismal experience of projects in Latin America.[243] The World Bank now seeks to apply its current policy on IPs to some of its projects in Asia. This policy has provided an influential model for the projects of the Asian Development Bank.[244] The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy the promotion of their rights within the framework of national unity and development.[245] The IPRA amalgamates the Philippine category of ICCs with the international category of IPs,[246] and is heavily influenced by both the International Labor Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples. [247] ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in Independent Countries"[248] and was adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and many other

Page 162 of 217 international instruments on the prevention of discrimination.[249] ILO Convention No. 169 revised the "Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries" (ILO No. 107) passed on June 26, 1957. Developments in international law made it appropriate to adopt new international standards on indigenous peoples "with a view to removing the assimilationist orientation of the earlier standards," and recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development." [250]

CONCLUSION

The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious differences. These differences were carried over and magnified by the Philippine government through the imposition of a national legal order that is mostly foreign in origin or derivation.[251] Largely unpopulist, the present legal system has resulted in the alienation of a large sector of society, specifically, the indigenous peoples. The histories and cultures of the indigenes are relevant to the evolution of Philippine culture and are vital to the understanding of contemporary problems.[252] It is through the IPRA that an attempt was made by our legislators to understand Filipino society not in terms of myths and biases but through common experiences in the course of history. The Philippines became a democracy a centennial ago and the decolonization process still continues. If the evolution of the Filipino people into a democratic society is to truly proceed democratically, i.e., if the Filipinos as a whole are to participate fully in the task of continuing democratization,[253] it is this Court's duty to acknowledge the presence of indigenous and customary laws in the country and affirm their co-existence with the land laws in our national legal system. With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples Rights Act of 1997.

GONZALES VS. NARVASA

[G. R. No. 140835. August 14, 2000]
In this petition for prohibition and mandamus filed on December 9, 1999, petitioner Ramon A. Gonzales, in his capacity as a citizen and taxpayer, assails the constitutionality of the creation of the Preparatory Commission on Constitutional Reform (PCCR) and of the positions of presidential consultants, advisers and assistants. Petitioner asks this Court to enjoin the PCCR and the presidential consultants, advisers and assistants from acting as such, and to enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and recommendations. In addition, petitioner seeks to enjoin the Commission on Audit from passing in audit expenditures for the PCCR and the presidential consultants, advisers and assistants. Finally, petitioner prays for an order compelling respondent Zamora to furnish petitioner with information on certain matters. On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his capacity as Chairman of the PCCR, filed his Comment to the Petition. The rest of the respondents, who are being represented in this case by the Solicitor General, filed their Comment with this Court on March 7, 2000. Petitioner then filed a Consolidated Reply on April 24, 2000, whereupon this case was considered submitted for decision. I. Preparatory Commission on Constitutional Reform The Preparatory Commission on Constitutional Reform (PCCR) was created by President Estrada on November 26, 1998 by virtue of Executive Order No. 43 (E.O. No. 43) in order to study and recommend proposed amendments and/or revisions to the 1987 Constitution, and the manner of implementing the same.[1] Petitioner disputes the constitutionality of the PCCR on two grounds. First, he contends that it is a public office which only the legislature can create by way of a law. [2] Secondly, petitioner asserts that by creating such a body the President is intervening in a process from which he is totally excluded by the Constitution the amendment of the fundamental charter.[3] It is alleged by respondents that, with respect to the PCCR, this case has become moot and academic. We agree. An action is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead.[4] Under E.O. No. 43, the PCCR was instructed to complete its task on or before June 30, 1999. [5] However, on February 19, 1999, the President issued Executive Order No. 70 (E.O. No. 70), which extended the time frame for the completion of the commissions work, viz SECTION 6. Section 8 is hereby amended to read as follows: Time Frame. The Commission shall commence its work on 01 January 1999 and complete the same on or before 31 December 1999. The Commission shall submit its report and recommendations to the President within fifteen (15) working days from 31 December 1999. The PCCR submitted its recommendations to the President on December 20, 1999 and was dissolved by the President on the same day. It had likewise spent the funds allotted to it.[6] Thus, the PCCR has ceased to exist, having lost its raison detre. Subsequent events have overtaken the petition and the Court has nothing left to resolve. The staleness of the issue before us is made more manifest by the impossibility of granting the relief prayed for by petitioner. Basically, petitioner asks this Court to enjoin the PCCR from acting as such.[7] Clearly, prohibition is an inappropriate remedy since the body sought to be enjoined no longer exists. It is well established that prohibition is a preventive remedy and does

Page 163 of 217 not lie to restrain an act that is already fait accompli.[8] At this point, any ruling regarding the PCCR would simply be in the nature of an advisory opinion, which is definitely beyond the permissible scope of judicial power. In addition to the mootness of the issue, petitioners lack of standing constitutes another obstacle to the successful invoca tion of judicial power insofar as the PCCR is concerned. The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[9] In assailing the constitutionality of E.O. Nos. 43 and 70, petitioner asserts his interest as a citizen and taxpayer.[10] A citizen acquires standing only if he can establish that he has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.[11] In Kilosbayan, Incorporated v. Morato,[12] we denied standing to petitioners who were assailing a lease agreement between the Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation, stating that, in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716, Sept. 22, 1987, standing was denied to a petitioner who sought to declare a form of lottery known as Instant Sweepstakes invalid because, as the Court held, Valmonte brings the suit as a citizen, lawyer, taxpayer and father of three (3) minor children. But nowhere in his petition does petitioner claim that his rights and privileges as a lawyer or citizen have been directly and personally injured by the operation of the Instant Sweepstakes. The interest of the person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law is invalid, but also that he has sustained or in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute complained of. We apprehend no difference between the petitioner in Valmonte and the present petitioners. Petitioners do not in fact show what particularized interest they have for bringing this suit. It does not detract from the high regard for petitioners as civic leaders to say that their interest falls short of that required to maintain an action under Rule 3, d 2. Coming now to the instant case, petitioner has not shown that he has sustained or is in danger of sustaining any personal injury attributable to the creation of the PCCR. If at all, it is only Congress, not petitioner, which can claim any injury in this case since, according to petitioner, the President has encroached upon the legislatures powers to create a public office and to propose amendments to the Charter by forming the PCCR. Petitioner has sustained no direct, or even any indirect, injury. Neither does he claim that his rights or privileges have been or are in danger of being violated, nor that he shall be subjected to any penalties or burdens as a result of the PCCRs activities. Clearly, petitioner has failed to establish his locus standi so as to enable him to seek judicial redress as a citizen. A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that public funds have been disbursed in alleged contravention of the law or the Constitution.[13], Thus payers action is properly brought only when there is an exercise by Congress of its taxing or spending power.[14] This was our ruling in a recent case wherein petitioners Telecommunications and Broadcast Attorneys of the Philippines (TELEBAP) and GMA Network, Inc. questioned the validity of section 92 of B.P. No. 881 (otherwise knows as the Omnibus Election Code) requiring radio and television stations to give free air time to the Commission on Elections during the campaign period.[15] The Court held that petitioner TELEBAP did not have any interest as a taxpayer since the assailed law did not involve the taxing or spending power of Congress.[16] Many other rulings have premised the grant or denial of standing to taxpayers upon whether or not the case involved a disbursement of public funds by the legislature. In Sanidad v. Commission on Elections,[17] the petitioners therein were allowed to bring a taxpayers suit to question several presidential decrees promulgated by then President Marcos in his legislative capa city calling for a national referendum, with the Court explaining that ...[i]t is now an ancient rule that the valid source of a statute Presidential Decrees are of such nature may be contested by one who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. The breadth of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for the effective implementation of its purposes. Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. In still another case, the Court held that petitioners the Philippine Constitution Association, Inc., a non-profit civic organization had standing as taxpayers to question the constitutionality of Republic Act No. 3836 insofar as it provides for retirement gratuity and commutation of vacation and sick leaves to Senators and Representatives and to the elective officials of both houses of Congress.[18] And in Pascual v. Secretary of Public Works,[19] the Court allowed petitioner to maintain a taxpayers suit assailing the constitutional soundness of Republic Act No. 920 appropriating P85,000 for the construction, repair and improvement of feeder roads within private property. All these cases involved the disbursement of public funds by means of a law. Meanwhile, in Bugnay Construction and Development Corporation v. Laron,[20] the Court declared that the trial court was wrong in allowing respondent Ravanzo to bring an action for injunction in his capacity as a taxpayer in order to question the legality of the contract of lease covering the public market entered into between the City of Dagupan and petitioner. The Court declared that

Page 164 of 217 Ravanzo did not possess the requisite standing to bring such taxpayers suit since [o]n its face, and there is no evidence t o the contrary, the lease contract entered into between petitioner and the City shows that no public funds have been or will be used in the construction of the market building. Coming now to the instant case, it is readily apparent that there is no exercise by Congress of its taxing or spending power. The PCCR was created by the President by virtue of E.O. No. 43, as amended by E.O. No. 70. Under section 7 of E.O. No. 43, the amount of P3 million is appropriated for its operational expenses to be sourced from the funds of the Office of the President. The relevant provision states Appropriations. The initial amount of Three Million Pesos (P3,000,000.00) is hereby appropriated for the operational expenses of the Commission to be sourced from funds of the Office of the President, subject to the usual accounting and auditing rules and regulations. Additional amounts shall be released to the Commission upon submission of requirements for expenditures. The appropriations for the PCCR were authorized by the President, not by Congress. In fact, there was no an appropriation at all. In a strict sense, appropriation has been defined as nothing more than the legislative authorization prescribed by the Constitution that money may be paid out of the Treasury, while appropriation made by law refers to the act of the legislature setting apart or assigning to a particular use a certain sum to be used in the payment of debt or dues from the State to its creditors. [21] The funds used for the PCCR were taken from funds intended for the Office of the President, in the exercise of the Chief Executives power to transfer funds pursuant to section 25 (5) of article VI of the Constitution. In the final analysis, it must be stressed that the Court retains the power to decide w hether or not it will entertain a taxpayers suit.[22] In the case at bar, there being no exercise by Congress of its taxing or spending power, petitioner cannot be allowed to question the creation of the PCCR in his capacity as a taxpayer, but rather, he must establish that he has a personal and su bstantial interest in the case and that he has sustained or will sustain direct injury as a result of its enforcement. [23] In other words, petitioner must show that he is a real party in interest - that he will stand to be benefited or injured by the judgment or that he will be entitled to the avails of the suit.[24] Nowhere in his pleadings does petitioner presume to make such a representation. II. Presidential Consultants, Advisers, Assistants The second issue raised by petitioner concerns the presidential consultants. Petitioner alleges that in 1995 and 1996, the President created seventy (70) positions in the Office of the President and appointed to said positions twenty (20) presidential consultants, twenty-two (22) presidential advisers, and twenty-eight (28) presidential assistants.[25] Petitioner asserts that, as in the case of the PCCR, the President does not have the power to create these positions.[26] Consistent with the abovementioned discussion on standing, petitioner does not have the personality to raise this issue before the Court. First of all, he has not proven that he has sustained or is in danger of sustaining any injury as a result of the appointment of such presidential advisers. Secondly, petitioner has not alleged the necessary facts so as to enable the Court to determine if he possesses a taxpayers interest in this particular issue. Unlike the PCCR which was created by virtue of an executive order, petitioner does not allege by what official act, whether it be by means of an executive order, administrative order, memorandum order, or otherwise, the President attempted to create the positions of presidential advisers, consultants and assistants. Thus, it is unclear what act of the President petitioner is assailing. In support of his allegation, petitioner merely annexed a copy of the Philippine Government Directory (Annex C) listing the names and positions of such presidential consultants, advisers and assistants to his petition. However, appointment is obviously not synonymous with creation. It would be improvident for this Court to entertain this issue given the insufficient nature of the allegations in the Petition. III. Right to Information Finally, petitioner asks us to issue a writ of mandamus ordering Executive Secretary Ronaldo B. Zamora to answer his letter (Annex D) dated October 4, 1999 requesting for the names of executive officials holding multiple positions in government, c opies of their appointments, and a list of the recipients of luxury vehicles seized by the Bureau of Customs and turned over to Malacanang.[27] The right to information is enshrined in Section 7 of the Bill of Rights which provides that The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Under both the 1973[28] and 1987 Constitution, this is a self-executory provision which can be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil Service Commission,[29] wherein the Court classified the right to information as a public right and when a [m]andamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public which possesses the right. However, Congress may provide for reasonable conditions upon the access to information. Such limitations were embodied in Republic Act No. 6713, otherwise knows as the Code of Conduct and Ethical Standards for Public Officials and Employees, which took effect on March 25, 1989. This law provides that, in the performance of their duties, all public officials and employees are obliged to respond to letters sent by the public within fifteen (15) working days from receipt thereof and to ensure the accessibility of all public documents for inspection by the public within reasonable working hours, subject to the reasonable claims of confidentiality. [30] Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano[31] that [t]he incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful democratic decisionmaking if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times.

Page 165 of 217 The information to which the public is entitled to are those concerning matters of public concern, a term which embrac e[s] a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [32] Thus, we agree with petitioner that respondent Zamora, in his official capacity as Executive Secretary, has a constitutional and statutory duty to answer petitioners letter dealing with matters which are unquestionably of public concern that is, appointments made to public offices and the utilization of public property. With regard to petitioners request for copies of the appointment papers of certain officials, respondent Zamora is obliged to allow the inspection and copying of the same subject to the reasonable limitations required for the orderly conduct of official business.[33] WHEREFORE, the petition is dismissed, with the exception that respondent Zamora is ordered to furnish petitioner with the information requested.

MOOTNESS; EXCEPTION CITY OF PASIG VS. COMELEC

G.R. No. 125646 September 10, 1999
Before us are two (2) petitions which both question the propriety of the suspension of plebiscite proceedings pending the resolution of the issue of boundary disputes between the Municipality of Cainta and the City of Pasig.1wphi1.nt G.R. No. 125646 involves the proposed Barangay Karangalan while G.R. No. 128663 involves the proposed Barangay Napico. The City of Pasig claims these areas as part of its jurisdiction/territory while the Municipality of Cainta claims that these proposed barangays encroached upon areas within its own jurisdiction/territory. The antecedent facts are as follows: On April 22, 1996, upon petition of the residents of Karangalan Village that they be segregated from its mother Barangays Manggahan and Dela Paz, City of Pasig, and to be converted and separated into a distinct barangay to be known as Barangay Karangalan, the City Council of Pasig passed and approved Ordinance No. 21, Series of 1996, creating Barangay Karangalan in Pasig City. 1 Plebiscite on the creation of said barangay was thereafter set for June 22, 1996. Meanwhile, on September 9, 1996, the City of Pasig similarly issued Ordinance No. 52, Series of 1996, creating Barangay Napico in Pasig City. 2 Plebiscite for this purpose was set for March 15, 1997. Immediately upon learning of such Ordinances, the Municipality of Cainta moved to suspend or cancel the respective plebiscites scheduled, and filed Petitions with the Commission on Elections (hereinafter referred to as COMELEC) on June 19, 1996 (UND No. 96-016) 3 and March 12, 1997 (UND No. 97-002), respectively. In both Petitions, the Municipality of Cainta called the attention of the COMELEC to a pending case before the Regional Trial Court of Antipolo, Rizal, Branch 74, for settlement of boundary dispute. 4 According to the Municipality of Cainta, the proposed barangays involve areas included in the boundary dispute subject of said pending case; hence, the scheduled plebiscites should be suspended or cancelled until after the said case shall have been finally decided by the court. In UND No. 96-016, the COMELEC accepted the position of the Municipality of Cainta and ordered the plebiscite on the creation of Barangay Karangalan to be held in abeyance until after the court has settled with finality the boundary dispute involving the two municipalities. 5 Hence, the filing of G.R. No. 125646 by the City of Pasig. The COMELEC, however, ruled differently in UND No. 97-002, dismissing the Petition for being moot in view of the holding of the plebiscite as scheduled on March 15, 1997 where the creation of Barangay Napico was ratified and approved by the majority of the votes cast therein. 6 Hence, the filing of G.R. No. 128663 by the Municipality of Cainta. The issue before us is whether or not the plebiscites scheduled for the creation of Barangays Karangalan and Napico should be suspended or cancelled in view of the pending boundary dispute between the two local governments. To begin with, we agree with the position of the COMELEC that Civil Case No. 94-3006 involving the boundary dispute between the Municipality of Cainta and the City of Pasig presents a prejudicial question which must first be decided before plebiscites for the creation of the proposed barangays may be held. The City of Pasig argues that there is no prejudicial question since the same contemplates a civil and criminal action and does not come into play where both cases are civil, as in the instant case. While this may be the general rule, this Court has held in Vidad v. RTC of Negros Oriental, Br. 42, 7 that, in the interest of good order, we can very well suspend action on one case pending the final outcome of another case closely interrelated or linked to the first. In the case at bar, while the City of Pasig vigorously claims that the areas covered by the proposed Barangays Karangalan and Napico are within its territory, it can not deny that portions of the same area are included in the boundary dispute case pending

Page 166 of 217 before the Regional Trial Court of Antipolo. Surely, whether the areas in controversy shall be decided as within the territorial jurisdiction of the Municipality of Cainta or the City of Pasig has material bearing to the creation of the proposed Barangays Karangalan and Napico. Indeed, a requisite for the creation of a barangay is for its territorial jurisdiction to be properly identified by metes and bounds or by more or less permanent natural boundaries. 8 Precisely because territorial jurisdiction is an issue raised in the pending civil case, until and unless such issue is resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. Not only that, we would be paving the way for potentially ultra vires acts of such barangays. Indeed, in Mariano, Jr. v. Commission on Elections, 9 we held that The importance of drawing, with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people's welfare. Moreover, considering the expenses entailed in the holding of plebiscites, it is far more prudent to hold in abeyance the conduct of the same, pending final determination of whether or not the entire area of the proposed barangays are truly within the territorial jurisdiction of the City of Pasig. Neither do we agree that merely because a plebiscite had already been held in the case of the proposed Barangay Napico, the petition of the Municipality of Cainta has already been rendered moot and academic. The issues raised by the Municipality of Cainta in its petition before the COMELEC against the holding of the plebiscite for the creation of Barangay Napico are still pending determination before the Antipolo Regional Trial Court. In Tan v. Commission on Elections, 10 we struck down the moot and academic argument as follows Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetration of such wrong. For this Court to yield to the respondents' urging that, as there has been fait accompli, then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents' submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about afait accompli. Therefore, the plebiscite on the creation of Barangay Karangalan should be held in abeyance pending final resolution of the boundary dispute between the City of Pasig and the Municipality of Cainta by the Regional Trial Court of Antipolo City. In the same vein, the plebiscite held on March 15, 1997 to ratify the creation of Barangay Napico, Pasig City, should be annulled and set aside.1wphi1.nt WHEREFORE, premises considered, 1. The Petition of the City of Pasig in G.R. No. 125646 is DISMISSED for lack of merit; while 2. The Petition of the Municipality of Cainta in G.R. No. 128663 is GRANTED. The COMELEC Order in UND No. 97-002, dated March 21, 1997, is SET ASIDE and the plebiscite held on March 15, 1997 to ratify the creation of Barangay Napico in the City of Pasig is declared null and void. Plebiscite on the same is ordered held in abeyance until after the courts settle with finality the boundary dispute between the City of Pasig and the Municipality of Cainta, in Civil Case No. 94-3006. No pronouncement as to costs. SO ORDERED.

Page 167 of 217

POLITICAL QUESTION JOSEPH ESTRADA VS. ANIANO DESIERTO

G.R. No. 146710-15 March 2, 2001
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1 The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.2 The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services 6 and later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office and refused to resign. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry. 9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10 The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13 The political temperature rose despite the cold December. On December 7, the impeachment trial started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on February 4, 2000.15

Page 168 of 217 After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senatorjudges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.20 January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21 On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope.26 There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez. 27 Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He issued the following press statement: 30 "20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in to promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people.

Page 169 of 217 MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA" It also appears that on the same day, January 20, 2001, he signed the following letter: 31 "Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA" A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33 On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit: "A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice President Gloria MacapagalArroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.1wphi1.nt This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government.36 On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals under the Constitution."39 On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she also signed into law the Political Advertising ban and Fair Election Practices Act.41 On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. 42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46 On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post.48 Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50

Page 170 of 217 After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15." On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: "(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic."53 The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy. II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III

Page 171 of 217 Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I Whether or not the cases At bar involve a political question Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket, which the Court cannot enter. We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz: "x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions', not of 'political cases'." In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x." Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987 Constitution . Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

Page 172 of 217 In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise ofpeople power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non."65 TheMalolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66 Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: "Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the progress of a society can take place without destroying the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all."72 In the relatively recent case ofSubayco v. Sandiganbayan,73 this Court similar stressed that " it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers ." Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically the province and duty of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark. II Whether or not the petitioner Resigned as President We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President. The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides: "Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice President shall have been elected and qualified.

Page 173 of 217 x x x." The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of"dignified exit or resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family.83 Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace." 85 This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact.According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: "x x x I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name.

Page 174 of 217 If the envelope is opened, on Monday, he says, he will leave by Monday. The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go."88 Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: "Opposition's deal 7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled "Negotiating Points." It reads: '1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice President to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned. 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police authority effective immediately. 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the President and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: '1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. '2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities Vice President (Macapagal). '3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President (Macapagal) as national military and police authorities.

Page 175 of 217 Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in "Annex A" heretofore attached to this agreement."89 The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90 "xxx 11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement. The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. xxx The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. '3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority Vice President. '4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities. '5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore attached to this agreement. 11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United opposition. And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. 'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the agreement)?' I asked. Reyes answered: 'Wala na, sir (it's over, sir).' I ask him: Di yung transition period, moot and academic na?' And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).' Contrary to subsequent reports, I do not react and say that there was a double cross.

Page 176 of 217 But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provisions on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The President is too stunned for words: Final meal 12 noon Gloria takes her oath as president of the Republic of the Philippines. 12:20 p.m. The PSG distributes firearms to some people inside the compound. The president is having his final meal at the presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal possessions as they can. During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving Malacaang. The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY!"' It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense. It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: "Sir.

Page 177 of 217 By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting president. (Sgd.) Joseph Ejercito Estrada" To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is another reason why this Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery." A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire." 92 During the period of amendments, the following provision was inserted as section 15: "Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency."93 The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the President's immunity should extend after his tenure. Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right.94 A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 000-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already

Page 178 of 217 broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. III Whether or not the petitioner Is only temporarily unable to Act as President. We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of article VII."95 This contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides: "SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within fortyeight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office." That is the law. Now, the operative facts: 1. 2. 3. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House; Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.; Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states: "RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;

Page 179 of 217 WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria MacapagalArroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation's goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker

Page 180 of 217 This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" (4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed the following: "RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolve cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99 On February 7, the Senate also passed Senate Resolution No. 82100 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states: "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Page 181 of 217 Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and has been terminated. Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the "second envelope" be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate president. Resolved, finally. That all parties concerned be furnished copies of this Resolution. Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" (5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.' (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President. (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as president of the Philippines. Following Taada v. Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing the principle of separation of powers. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court. IV Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; andsecond, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and

Page 182 of 217 Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: " The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either that a person injured by the executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that the governors-general, like the judges if the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more than it can a member of the Philippine Commission of the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, be acts, not as Governor-General but as a private individual, and as such must answer for the consequences of his act." Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government itself."105 Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: "In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only form civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)." The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong."107 The effort failed. The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108

Page 183 of 217 "Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I think the Commissioner for the clarifications." We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." 109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:110 "xxx Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgement of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts." This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.114 Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme

Page 184 of 217 Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruptio." 119 it ordained that "public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency. V Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.'

Page 185 of 217 We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. 130 and its companion cases, viz: "Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was xxx a. The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized when a shocking crime occurs a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility and emotion. To work effectively, it is important that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedom such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. Even though the Constitution contains no provision which be its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press be eviscerated.

b.

c.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made

Page 186 of 217 by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.1wphi1.nt The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI. Epilogue A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms."135 To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO ORDERED.

CRIMINAL CHARGES AGAINST A JUDGE; JURISDICTION OF THE OMBUDSMAN DE VERA VS. PELAYO
[G.R. No. 137354. July 6, 2000]
"It is said that a little learning is a dangerous thing; and he who acts as his own lawyer has a fool for a client." In Re: Joaquin Borromeo 241 SCRA 408 (1995) The case is a petition for certiorari and mandamus[1] assailing the Evaluation Report of the Evaluation and Investigation Office, Office of the Ombudsman, dated October 2, 1998 referring petitioners complaint to the Supreme Court and its Memorandum, dated January 4, 1999,[2] denying petitioners motion for reconsideration. We state the relevant facts. Petitioner is not a member of the bar. Possessing some awareness of legal principles and procedures, he represents himself in this petition.

Page 187 of 217 On August 28, 1996, petitioner instituted with the Regional Trial Court, Pasig City a special civil action for certiorari, prohibition and mandamus to enjoin the municipal trial court from proceeding with a complaint for ejectment against petitioner. [3] When the Judge originally assigned to the case inhibited himself, the case was re-raffled to respondent Judge Benjamin V. Pelayo.[4] On July 9, 1998, the trial court denied petitioners application for a tempor ary restraining order. Petitioner moved for reconsideration. The court denied the same on September 1, 1998.[5] On September 23, 1998, petitioner filed with the Office of the Ombudsman an affidavit-complaint[6] against Judge Pelayo, accusing him of violating Articles 206[7] and 207[8] of the Revised Penal Code and Republic Act No. 3019.[9] On October 2, 1998, Associate Graft Investigation Officer, Erlinda S. Rojas submitted an Evaluation Report recommending referral of petitioners complaint to the Supreme Court. Assistant Ombudsman Abelardo L. Apotadera approved the recommendation.[10] We quote the decretal portion of the report:[11] "FOREGOING CONSIDERED, and in accordance with the ruling in Maceda vs. Vasquez, 221 SCRA 464, it is respectfully recommended that the instant complaint be referred to the Supreme Court for appropriate action. The same is hereby considered CLOSED and TERMINATED insofar as this Office is concerned." On October 13, 1998, the Office of the Ombudsman referred the case to the Court Administrator, Supreme Court. [12] On November 6, 1998, petitioner moved for the reconsideration of the Evaluation Report. On January 4, 1999, the Ombudsman denied the motion for reconsideration.[13] Hence, this petition.[14] The issue is whether or not the Ombudsman has jurisdiction to entertain criminal charges filed against a judge of the regional trial court in connection with his handling of cases before the court. Petitioner criticizes the jurisprudence[15] cited by the Office of the Ombudsman as erroneous and not applicable to his complaint. He insists that since his complaint involved a criminal charge against a judge, it was within the authority of the Ombudsman not the Supreme Court to resolve whether a crime was committed and the judge prosecuted therefor. The petition can not succeed. We find no grave abuse of discretion committed by the Ombudsman. The Ombudsman did not exercise his power in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility.[16] There was no evasion of positive duty. Neither was there a virtual refusal to perform the duty enjoined by law.[17] We agree with the Solicitor General that the Ombudsman committed no grave abuse of discretion warranting the writs prayed for.[18] The issues have been settled in the case of In Re: Joaquin Borromeo.[19] There, we laid down the rule that before a civil or criminal action against a judge for a violation of Art. 204 and 205 (knowingly rendering an unjust judgment or order) can be entertained, there must first be "a final and authoritative judicial declaration" that the decision or order in question is indeed "unjust." The pronouncement may result from either:[20] (a).....an action of certiorari or prohibition in a higher court impugning the validity of the judgment; or (b).....an administrative proceeding in the Supreme Court against the judge precisely for promulgating an unjust judgment or order. Likewise, the determination of whether a judge has maliciously delayed the disposition of the case is also an exclusive judicial function.[21] "To repeat, no other entity or official of the Government, not the prosecution or investigation service of any other branch, not any functionary thereof, has competence to review a judicial order or decision -- whether final and executory or not -- and pronounce it erroneous so as to lay the basis for a criminal or administrative complaint for rendering an unjust judgment or order. That prerogative belongs to the courts alone (underscoring ours)."[22] This having been said, we find that the Ombudsman acted in accordance with law and jurisprudence when he referred the cases against Judge Pelayo to the Supreme Court for appropriate action.

Page 188 of 217 WHEREFORE, there being no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the respondent, we DISMISS the petition and AFFIRM the Evaluation Report of the Evaluation and Investigation Office, Office of the Ombudsman dated October 2, 1998 and its memorandum, dated January 4, 1999, in toto. No costs. SO ORDERED.

MEMORANDUM DECISION FRANCISCO VS. PERMSKUL

G.R. No. 81006 May 12, 1989
An important constitutional question has been injected in this case which started out as an ordinary complaint for a sum of money. The question squarely presented to the Court is the validity of the memorandum decision authorized under Section 40 of B.P. Blg. 129 in the light of Article VIII, Section 14 of the Constitution. On May 21, 1984, the petitioner leased his apartment in Makati to the private respondent for a period of one year for the stipulated rental of P3,000.00 a month. Pursuant to the lease contract, the private respondent deposited with the petitioner the amount of P9,000.00 to answer for unpaid rentals or any damage to the leased premises except when caused by reasonable wear and tear. On May 31, 1985, the private respondent vacated the property. He thereafter requested the refund of his deposit minus the sum of P1,000.00, representing the rental for the additional ten days of his occupancy after the expiration of the lease. The petitioner rejected this request. He said the lessee still owed him for other charges, including the electricity and water bills and the sum of P2,500.00 for repainting of the leased premises to restore them to their original condition. 1 The private respondent sued in the Metropolitan Trial Court of Makati. After the submission of position papers by the parties, a summary judgment was rendered on October 11, 1985, sustaining the complainant and holding that the repainting was not chargeable to him. The defendant was ordered to pay the plaintiff the amount of P7,750.00, representing the balance of the deposit after deducting the water and electricity charges. The plaintiff was also awarded the sum of P1,250.00 as attorney's fees, plus the Costs. 2 This decision was appealed to the Regional Trial Court of Makati and was affirmed by Judge Jose C. de la Rama on January 14, 1987. This was done in a memorandum decision reading in full as follows: MEMORANDUM DECISION After a careful and thorough perusal, evaluation and study of the records of this case, this Court hereby adopts by reference the findings of fact and conclusions of law contained in the decision of the Metropolitan Trial Court of Makati, Metro Manila, Branch 63 and finds that there is no cogent reason to disturb the same. WHEREFORE, judgment appealed from is hereby affirmed in toto. 3 When the defendant went to the Court of Appeals, his petition for review was denied on September 29, 1987, as so too was his motion for reconsideration, on December 1, 1987. 4 He is now before us to fault the respondent court, principally for sustaining the memorandum decision of the regional trial court. His contention is that it violates Article VIII, Section 14 of the Constitution. This provision reads as follows: Sec. 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. Except for the second paragraph, which was introduced only in the present charter, Section 14 has been in force since the Constitution of 1935. The provision was recast in affirmative terms in the 1973 Constitution but has been virtually restored to its original form in the Constitution of 1987, to apply to all courts, including the municipal courts. The purpose has always been the same, viz., to inform the person reading the decision, and especially the parties, of how it was reached by the court after consideration of the pertinent facts and examination of the applicable laws. The parties are entitled to no less than this explanation if only to assure them that the court rendering the decision actually studied the case before pronouncing its judgment. But there are more substantial reasons. For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he may elevate what he may consider its errors for review by a higher

Page 189 of 217 tribunal. For another, the decision, if well-presented and reasoned, may convince the losing party of its merits and persuade it to accept the verdict in good grace instead of prolonging the litigation with a useless appeal. A third reason is that decisions with a full exposition of the facts and the law on which they are based, especially those coming from the Supreme Court, will constitute a valuable body of case law that can serve as useful references and even as precedents in the resolution of future controversies. As the Court said in Rosales v. Court of First Instance. 5 Precedents are helpful in deciding cases when they are on all fours or at least substantially Identical with previous litigations. Argumentum a simili valet in lege. Earlier decisions are guideposts that can lead us in the right direction as we tread the highways and byways of the law in the search for truth and justice. These pronouncements represent the wisdom of the past. They are the voice of vanished judges talking to the future. Except where there is a need to reverse them because of an emergent viewpoint or an altered situation, they urge us strongly that, indeed, the trodden path is best. According to the petitioner, the memorandum decision rendered by the regional trial court should be revoked for non-compliance with the above-quoted constitutional mandate. He asks that the case be remanded to the regional trial court for a full blown hearing on the merits, to be followed by a decision stating therein clearly and distinctly the facts and the law on which it is based. For his part, the private respondent demurs. He justifies the memorandum decision as authorized by B.P. Blg. 129 and invokes the ruling of this Court in Romero v. Court of Appeals, 6 Which sustained the said law. Section 40 of B.P. Blg. 129 reads as follows: Sec. 40. Form of decision in appealed cases. Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order or resolution appealed from. The above section was applied in the Romero case, together with a similar rule embodied in Section 18 of P.D. No. 946, providing that: All cases of the Court of Agrarian Relations now pending before the Court of Appeals shall remain in the Division to which they have been assigned, and shall be decided within sixty (60) days from the effectivity of this Decree; Provided, however, That if the decision or order be an affirmance in totoof the dispositive conclusion of the judgment appealed from, then the Court of Appeals may, instead of rendering an extended opinion, indicate clearly the trial court's findings of fact and pronouncements of law which have been adopted as basis for the affirmance. In the said case, Justice Jose Y. Feria, speaking for a unanimous Court, declared: As previously stated, the decision of the Court of Agrarian Relations consisted of thirteen pages, single space. The above-quoted decision of the respondent Court of Appeals consists of four pages, three of which contains verbatim the dispositive portion of the decision appealed from. The remaining page is devoted to an explanation of why "for judicial convenience and expediency, therefore, We hereby adopt, by way of reference, the findings of facts and conclusions of the court a quo spread in its decision, as integral part of this Our decision." The said decision may be considered as substantial compliance with the above-quoted provisions in Section 18 of P.D. No. 946 and Section 40 of B.P. Blg. 129. Nevertheless, he was quick to add a tenable misgiving and to express the following reservation: The authority given the appellate court to adopt by reference the findings of fact and conclusions of law from those set forth in the appealed decisions should be exercised with caution and prudence, because the tendency would be to follow the line of least resistance by just adopting the findings and conclusions of the lower court without thoroughly studying the appealed case. This caveat was necessary because, as he correctly observed: It cannot be too strongly emphasized that just as important as the intrinsic validity of a decision is the perception by the parties-litigants that they have been accorded a fair opportunity to be heard by a fair and responsible magistrate before judgment is rendered. It is this perception, coupled with a clear conscience, which enables the members of the judiciary to discharge the awesome responsibility of sitting in judgment on their fellowmen. There is no question that the purpose of the law in authorizing the memorandum decision is to expedite the termination of litigations for the benefit of the parties as well as the courts themselves. Concerned with the mounting problem of delay in the administration of justice, the Constitution now contains a number of provisions aimed at correcting this serious difficulty that has caused much disaffection among the people. Thus, Section 16 of the Bill of Rights reiterates the original provision in the 1973 Constitution guaranteeing to all persons "the right to a speedy disposition of their cases

Page 190 of 217 before all judicial, quasi-judicial or administrative bodies." Section 14(2) of the same Article III retains the rule that the accused shall be entitled to a trial that shall not only be public and impartial but also speedy. In Article VIII, Section 5(3), the Supreme Court is expressly permitted to temporarily assign a judge from one station to another when the public interest so requires, as when there is a necessity for less occupied judge to help a busier colleague dispose of his cases. In paragraph 5 of the same section, it is stressed that the rules of court to be promulgated by the Supreme Court "shall provide a simplified and inexpensive procedure for the speedy disposition of cases." In Section 15, of the same article, maximum periods are prescribed for the decision or resolution of cases, to wit, twenty-four months in the case of Supreme Court and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts and three months for all other lower courts. The courts of justice are really hard put at coping with the tremendous number of cases in their dockets which, to make matters worse, continues to grow by the day despite the efforts being taken to reduce it. In the Supreme Court alone, an average of 400 cases is received every month as against the average of 300 cases disposed of during the same month, leaving a difference of 100 cases monthly that is added to some 5,000 still unresolved cases that have accumulated during the last two decades or so. At this rate, the backlog will increase by 1,200 cases every year on top of the earlier balance, much of which, despite its age, is still viable and have still to be resolved. Considering that the Court spends four days of the week for studying and deliberating on these cases in its en banc and division sessions, one can appreciate the limited time allowed its members for the actual writing of its decisions. (This particular decision, while extended, happens fortunately to be less complicated than many of the other cases submitted to it, which require more time to write, not to mention the antecedent research that may have to be made.) Viewed in the light of these practical considerations, the memorandum decision can be welcomed indeed as an acceptable method of dealing expeditiously with the case load of the courts of justice, But expediency alone, no matter how compelling, cannot excuse non-compliance with the Constitution; or to put it more familiarly, the end does not justify the means. It is plain that if Section 40 of B.P. Blg. 129 is unconstitutional, it must be struck down. In the case at bar, we find that a judgment was made by the metropolitan trial court in compliance with the rule on summary procedure. The decision consisted of three typewritten pages, single space, and stated clearly and distinctly the facts and the law on which it was based. It was a concise and well-written decision, and a correct one to boot, for which Judge Paciano B. Balita is to be commended. The problem, though, as the petitioner sees it, is that in affirming this judgment, the regional trial court of Makati rendered a mere memorandum decision that simply adopted by reference the findings of fact and law made by Judge Balita and then concluded, without saying more, that "there was no cogent reason to disturb the same." It is claimed that as Judge de la Rama did not make his own statement of the facts and the law as required by the Constitution, his memorandum decision was a total nullity. Worse, when the appeal was taken to the respondent court, what it reviewed was not the memorandum decision of the regional trial court but the decision rendered by the metropolitan trial court which, legally speaking, was not before the appellate court. It is not really correct to say that the Court of Appeals did not review the memorandum decision of the regional trial court which was the subject of the petition for review. A reading of its own decision will show that it dealt extensively with the memorandum decision and discussed it at some length in the light of the observations and reservations of this Court in the Romero case. Moreover, in reviewing the decision of the metropolitan trial court, the Court of Appeals was actually reviewing the decision of the regional trial court, which had incorporated by reference the earlier decision rendered by Judge Balita. The question, of course, is whether such incorporation by reference was a valid act that effectively elevated the decision of the metropolitan trial court for examination by the Court of Appeals. To be fair, let it be said that when Judge dela Rama availed himself of the convenience offered by Section 40 of B.P. Blg. 129, he was only acting in accordance with the ruling announced in Romero permitting the use of the memorandum decision. It must also be observed that even if the respondent court appeared to be partial to the reservation rather than the rule in the said case, it nevertheless had the duty which it discharged to abide by the doctrine announced therein by the highest tribunal of the land. The respondent court could not have acted otherwise. This Court is not hampered by such inhibitions. As we may re-examine our own rulings and modify or reverse them whenever warranted, we take a second look at the memorandum decision and the Romero case and test them on the touchstone of the Constitution. The law does not define the memorandum decision and simply suggests that the court may adopt by reference the findings of fact and the conclusions of law stated in the decision, order or resolution on appeal before it. No particular form is prescribed; the conditions for its use are not indicated. In fact, B.P. Blg. 129 does not even employ the term "memorandum decision" in Section 40 or elsewhere in the rest of the statute. This phrase appears to have been introduced in this jurisdiction not by that law but by Section 24 of the Interim Rules and Guidelines, reading as follows: Sec. 24. Memorandum decisions. -The judgment or final resolution of a court in appealed cases may adopt by reference the findings of fact and conclusions of law contained in the decision or final order appealed from. It is clear that where the decision of the appellate court actually reproduces the findings of fact or the conclusions of law of the court below, it is not a memorandum decision as envisioned in the above provision. The distinctive features of the memorandum decision

Page 191 of 217 are, first, it is rendered by an appellate court, and second, it incorporates by reference the findings of fact or the conclusions of law contained in the decision, order or ruling under review. Most likely, the purpose is to affirm the decision, although it is not impossible that the approval of the findings of fact by the lower court may lead to a different conclusion of law by the higher court. At any rate, the reason for allowing the incorporation by reference is evidently to avoid the cumbersome reproduction of the decision of the lower court, or portions thereof, in the decision of the higher court. The Idea is to avoid having to repeat in the body of the latter decision the findings or conclusions of the lower court since they are being approved or adopted anyway. Parenthetically, the memorandum decision is also allowed in the United States, but its form (at least) differs from the one under consideration in this case. Such a decision is rendered in that country upon a previous' determination by the judge that there is no need for a published opinion and that it will have no precedential effect. The judgment is usually limited to the dispositive portion but a memorandum is attached containing a brief statement of the facts and the law involved, mainly for the information of the parties to the case. When a law is questioned before the Court, we employ the presumption in favor of its constitutionality. As we said in Peralta v. Commission of Elections, "to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication." 7 Courts will bend over backward to sustain that presumption. In case of doubt, it is the duty of the judiciary to exert every effort to prevent the invalidation of the law and the nullification of the will of the legislature that enacted it and the executive that approved it. This norm is based on a becoming respect that the judiciary is expected to accord the political departments of the government which, it must be assumed in fairness, thoroughly studied the measure under challenge and assured themselves of its constitutionality before agreeing to enact it. The Court has deliberated extensively on the challenge posed against the memorandum decision as now authorized by law. Taking into account the salutary purpose for which it is allowed, and bearing in mind the above-discussed restraint we must observe when a law is challenged before us, we have come to the conclusion that Section 40 of B.P. Blg. 129, as we shall interpret it here, is not unconstitutional. What is questioned about the law is the permission it gives for the appellate court to merely adopt by reference in its own decision the judgment of the lower court on appeal. It is easy to understand that this device may feed the suspicion feared by Justice Feria that the court has not given the appeal the attention it deserved and thus deprived the parties of due process. True or not, this impression is likely to undermine popular faith in the judiciary as an impartial forum which hears before it decides and bases its decision on the established facts and the applicable law. No less objectionable is the inconvenience involved in having to search for the decision referred to, which, having been incorporated by reference only, does not have to be attached to the memorandum decision. The Court had occasion earlier to complain about this difficulty in the case of Gindoy v. Tapucar, 8 where we said: . . . True it is that the Court of First Instance may adopt in toto either expressly or impliedly the findings and conclusions of the inferior court, and as a rule, such adoption would amount to a substantial compliance with the constitutional mandate discussed herein, but where, as in this case, the specific arguments presented against the decision of the inferior court are of such nature that a blanket affirmance of said decision does not in fact adequately dispose of the strictures against it, it is but proper, if only to facilitate the action to be taken by the appellate court on the petition for review, that the concrete bases of the impugned decision should appear on its face, instead of the appellate court having to dig into the records to find out how the inferior court resolved the issues of the case. As to this problem, the Solicitor General correctly points out that it does not exist in the case at bar because the decision of the Court of Appeals extensively quoted from the decision of the metropolitan trial court. Although only incorporated by reference in the memorandum decision of the regional trial court, Judge Balita's decision was nevertheless available to the Court of Appeals. It is this circumstance, or even happenstance, if you will, that has validated the memorandum decision challenged in this case and spared it from constitutional infirmity. That same circumstance is what will move us now to lay down the following requirement, as a condition for the proper application of Section 40 of B.P. Blg. 129. The memorandum decision, to be valid, cannot incorporate the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision is not easily and immediately available to the person reading the memorandum decision. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said decision. In other words, the memorandum decision authorized under Section 40 of B.P. Blg. 129 should actually embody the findings of fact and conclusions of law of the lower court in an annex attached to and made an indispensable part of the decision. It is expected that this requirement will allay the suspicion that no study was made of the decision of the lower court and that its decision was merely affirmed without a proper examination of the facts and the law on which it was based. The proximity at least of the annexed statement should suggest that such an examination has been undertaken. It is, of course, also understood that the decision being adopted should, to begin with, comply with Article VIII, Section 14 as no amount of incorporation or adoption will rectify its violation. The Court finds it necessary to emphasize that the memorandum decision should be sparingly used lest it become an addictive excuse for judicial sloth. It is an additional condition for its validity that this kind of decision may be resorted to only in cases where

Page 192 of 217 the facts are in the main accepted by both parties or easily determinable by the judge and there are no doctrinal complications involved that will require an extended discussion of the laws involved. The memorandum decision may be employed in simple litigations only, such as ordinary collection cases, where the appeal is obviously groundless and deserves no more than the time needed to dismiss it. Despite the convenience afforded by the memorandum decision, it is still desirable that the appellate judge exert some effort in restating in his own words the findings of fact of the lower court and presenting his own interpretation of the law instead of merely parroting the language of the court a quo as if he cannot do any better. There must be less intellectual indolence and more pride of authorship in the writing of a decision, especially if it comes from an appellate court. It ill becomes an appellate judge to write his rulings with a pair of scissors and a pot of paste as if he were a mere researcher. He is an innovator, not an echo. The case usually becomes progressively simpler as it passes through the various levels of appeal and many issues become unimportant or moot and drop along the way. The appellate judge should prune the cluttered record to make the issues clearer. He cannot usually do this by simply mimicking the lower court. He must use his own perceptiveness in unraveling the rollo and his own discernment in discovering the law. No less importantly, he must use his own language in laying down his judgment. And in doing so, he should also guard against torpidity lest his pronouncements excite no more fascination than a technical tract on the values of horse manure as a fertilizer. A little style will help liven the opinion trapped in the tortuous lexicon of the law with all its whereases and wherefores. A judicial decision does not have to be a bore. The interpretation we make today will not apply retroactively to the memorandum decision rendered by the regional trial court in the case at bar, or to the decision of the respondent court such decision on the strength of Romero v. Court of Appeals. As earlier observed, there was substancial compliance with Section 40 because of the direct availability and actual review of the decision of Judge Balita incorporated by reference in the memorandum decision of Judge de la Rama. The memorandum decision as then understood under the Romero decision was a valid act at the time it was rendered by Judge de la Rama and produced binding legal effect. We also affirm the finding of the respondent court that the summary judgment without a formal trial was in accord with the Rule on Summary Procedure and that the award of attorney's fees is not improper. Henceforth, all memorandum decisions shall comply with the requirements herein set forth both as to the form prescribed and the occasions when they may be rendered. Any deviation will summon the strict enforcement of Article VIII, Section 14 of the Constitution and strike down the flawed judgment as a lawless disobedience. WHEREFORE, the petition is DENIED, with costs against the petitioner. This decision is immediately executory. It is so ordered.

PEOPLE VS. CABRAL

G.R. No. 131909 February 18, 1999
Assailed before this Court is the August 1, 1997 decision 1 of the Court of Appeals in CA GR. No. 42318 which affirmed the March 24, 1995 and June 14, 1996 orders 2 of the lower court granting accused-respondent's Motion for Bail and denying petitioner People's Motions "to Recall and Invalidate Order of March 24, 1995" and "to Recall and/or Reconsider the Order of May 5, 1995" confirming the hospitalization of accused-respondent. Accused-respondent Roderick Odiamar was charged with rape upon the complaint of Cecille Buenafe. In a bid to secure temporary liberty, accused- respondent filed a motion praying that he be released on bail which petitioner by presenting real, documentary and testimonial evidence. The lower court, however, granted the motion for bail in an order, the dispositive portion of which reads: WHEREFORE, the evidence not being strong at the (sic) stage of the trial, this court is constrained to grant bail for the provisional liberty of the accused Roderick Odiamar in the amount of P30,000.00. (Emphasis supplied) Believing that accused-respondent was not entitled to bail as the evidence against him was strong, the prosecution filed the two abovementioned motions which the lower court disposed of, thus: WHEREFORE, the motions dated 10 May 1995 and 15 May 1995 both filed by Atty. Romulo Tolentino, State Prosecutor, are hereby denied, for lack of merit. The above-cited orders prompted petitioner to file a petition before the Court of Appeals with prayer for temporary restraining order and preliminary injunction. The Court of Appeals denied the petition reasoning thus: We have examined in close and painstaking detail the records of this case, and find that the claim of the People that the respondent judge had over-stepped the exercise of his jurisdiction in issuing the questioned orders, is unimpressed with merit. We are not inclined to declare that there was grave abuse in respondent court's exercise of its discretion in allowing accused to obtain bail. There is grave abuse of discretion where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. We do not find this to be so in this case. Our ruling is based not only on the respect to be accorded the findings of facts of the

Page 193 of 217 trial court, which had the advantage (not available to Us) of having observed first-hand the quality of the autoptic preference and the documentary exhibits of the parties, as well as the demeanor of the witnesses on the stand, but is grounded on the liberal slant given by the law in favor of the accused. Differently stated, in the absence of clear, potent and compelling reasons, We are not prepared to supplant the exercise of the respondent court's discretion with that of Our own. Still convinced by the merit of its case, petitioner filed the instant petition submitting the following sole issue: WHETHER OR NOT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED DECISION AND RESOLUTION DESPITE A SHOWING BY THE PROSECUTION THAT THERE IS STRONG EVIDENCE PROVING RESPONDENT'S GUILT FOR THE CRIME CHARGED. The above-submitted issue pertains to the orders of the lower court granting used-respondent's application for bail which it justified through its summary of the evidence presented during the hearing. Said order states, thus: Now going over the evidence adduced in conjunction with the petition for bail filed by the accused through counsel, the court believes that the evidence so far presented by the prosecution is not strong. This is so because the crime of rape is not to be presumed; consent and not physical force is the common origin of acts between man and woman. Strong evidence and indication of great weight alone support such presumption. It is the teaching of applicable doctrines that form the defense in rape prosecution. In the final analysis, it is entitled to prevail, not necessarily because the untarnished truth is on its side but merely because it can raise reasonable, not fanciful doubts. It has the right to require the complainant (sic) strong evidence and an indication of great weight (People v. Godoy, G.R. No. L-31177, July 15, 1976), and in the instant case, the reasonable doubt is on the evidence of the prosecution, more so, because the intrinsic nature of the crime, the conviction or the acquittal of the accused depends almost entirely on the credibility of the complainant (People v. Oliquino, G.R. No. 94703, May 31, 1993). Rightly so, because in the commission of the offense of rape the facts and circumstances occuring either prior, during and subsequent thereto may provide conclusion whether they may negate the commission thereof by the accused (People v. Flores, L-6065, October 26, 1986). If they negate, they do presuppose that the evidence for the prosecution is not strong. More so, because in the instant case, the facts and circumstances showing that they do seem to negate the commission thereof were mostly brought out during the cross-examination. As such, they deserve full faith and credence because the purpose thereof is to test accuracy and truthfulness and freedom from interest and bias or the reverse (Rule 132, Sec. 6, Revised Rules of Evidence). The facts and circumstances brought up are as follow, to wit: a) That, when the offended party Cecille Buenafe rode in the jeepney then driven by the accused Roderick Odiamar in that evening of July 20, 1994 at about 8:00 o'clock from the Poblacion, Lagonoy, Camarines Sur the former knew that it was for a joy ride. In fact, she did not even offer any protest when the said jeepney proceeded to the Pilapil Beach resort at Telegrafo, San Jose, Camarines Sur instead of Sabang, same municipality, where she and Stephen Florece intended to go. And when the said jeepney was already inside that resort, Cecille even followed the accused in going down from the jeepney also without protest on her part, a fact which shows voluntariness on the part of the offended party and, therefore, to the mind of the court her claim of rape should not be received with precipitate credulity. On the contrary, an insight into the human nature is necessary (People v. Barbo, 56 SCRA 495). And it is only when the testimony is impeccable and rings true throughout where it shall be believed (People v. Tapao, G.R. No. L41704, October 23, 1981). Rightly so, because the aphorism that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with the common experience and observation of mankind is nowhere of moral relevance than in cases involving prosecution of rape (People v. Macatangay, 107 Phil. 188); b) That, in that resort, when the accused Roderick Odiamar and companions allegedly forced the offended party Cecille Buenafe to drink gin, the latter, at first, refused and even did not swallow it but later on voluntarily took four (4) shots there shows that there (was) no force. And as regards the claim that the accused Roderick Odiamar and companions allegedly forced the said offended party to inhale smoke, out of a small cigarette, presumably a marijuana, it becomes doubtful because the prosecution, however, failed to present any portion of that so-called small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause dizziness. Rightly so, because administration of narcotics is covered by Art. 335, par. 2 Revised Penal Code (People v. Giduces C.A. 38 O.C. 1434 cited in the Revised Penal Code, Aquino, Vol.III, pp. 392). As such, the burden of proof rests with the prosecution but it failed to do so; c) That, in that cottage where the accused, Roderick Odiamar allegedly brought the offended party, Cecille Buenafe, the former was able to consummate the alleged offense of rape by removing the two (2) hands of the offended party, placed them on her knee, separating them thereby freeing the said hand and consequently pushed the head of the accused but the latter was able to insert his penis when the said offended party was no longer moving and the latter became tired. Neither evidence has been presented to show that the offended party suffered an

Page 194 of 217 injury much less any part of her pants or blouse was torn nor evidence to show that there was an overpowering and overbearing moral influence of the accused towards the offended party (People v. Mabunga, G.R. No. 96441d, March 13, 1992) more so, because force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other (People v. Erogo, 102077 January 4, 1994); d) That, after the alleged commission of rape at about 3:00 o'clock in the early morning of July 21, 1994, the offended party, Cecille, Stephen Florece and the latter's companions all boarded the same jeepney going back to the Poblacion of Lagonoy, without the said offended party, protesting, crying or in any way showing sign of grief regarding the alleged commission of the offense of rape until the jeepney reached the house of Roderick Odiamar where the latter parked it. As in other cases, the testimony of the offended party shall not be accepted unless her sincerity and candor are free from suspicion, because the nature of the offense of rape is an accusation easy to be made, hard to be proved but harder to be defended by the party accused though innocent (People v. Francisco G.R. No. L-43789, July 15, 1981). It becomes necessary, therefore, for the courts to exercise the most painstaking care in scrutinizing the testimony of the witnesses for the prosecution (People v. Dayag, L-30619, March 29, 1974); e) That the offended party, Cecille Buenafe had herself physically examined by Dr. Josephine Decena for medical certificate dated July 27, 1994 and it states, among others, that there was a healed laceration on the hymen, her laceration might have been sustained by the said offended party, a month, six (6) months, and even a year, prior to the said examination and that the said laceration might have been caused by repeated penetration of a male sex organ probably showing that the offended party might have experienced sexual intercourse. This piece of testimony coming from an expert, such finding is binding to court (Rules of Court, Moran, op.cit,vol 5, 1963, ed. pp. 413). f) That the offended party, Cecille Buenafe accompanied by the Station Commander of Lagonoy, Camarines Sur, proceeded to Naga City and upon the suggestion of Gov. Bulaong, the said offended party submitted for medical treatment before the same physician per medical certificate dated August 1, 1994 but according to the said physician the lesions near the umbilicus were due to skin diseases but the said offended party claim they were made by the accused after the sexual acts. As such, there were contradictions on material points, it becomes of doubtful veracity (People v. Palicte 83 Phil.) and it also destroys the testimony (People v. Garcia, G.R. No. 13086, March 27, 1961). As to the fact that the said lesion was made by the accused subsequent to the commission of the act, it is immaterial. As such, it has no probative value. The lower court concluded that the evidence of guilt was not strong. The office of the Solicitor General disagreed with the lower court. It opined that aside from failing to include some pieces of evidence in the summary, the trial also misapplied some well-established doctrines of criminal law. The Office of the Solicitor General pointed out the following circumstances duly presented in the hearing for bail: First. There was no ill motive on the part of Cecille to impute the heinous crime of rape against respondent (People v. Paragsa, 83 SCRA 105 [1978]; People v. Delovino, 247 SCRA 637 [1995]). Second. Dr. Belmonte, the psychiatrist who attended to Cecille testified that based on her psychiatric examination of the latter, Cecille manifested psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptoms. These abnormal psychological manifestations, according to Dr. Belmonte, are traceable to the rape incident (Pages 5-7, TSN, November 22, 1994.) Third. The unrebutted offer of compromise by respondent is an implied admission of guilt (People v. Flore, 239 SCRA 83 [1994]). Fourth. Cecille was threatened by a deadly weapon and rendered unconscious by intoxication and inhalation of marijuana smoke. Fifth. The fact that after the conduct of two (2) preliminary investigations, "no bail was recommended in the information" constitutes "clear and strong evidence of the guilt of (all) the accused" (Baylon v. Sison, 243 SCRA 284 [1995]. Sixth. Cecille categorically testified on re-cross examination (pages 5-7, Order) that respondent succeeded in forcibly deflowering her because she was already weak and dizzy due to the effect of the smoke and the gin. Her declarations remain unrebutted.

Page 195 of 217 Seventh. Cecille categorically testified that she performed acts manifesting her lament, torment and suffering due to the rape. She went to Stephen Florece, cried and complained about the incident. Instead of helping her, Florece threatened to harm her and her family. (Pages 9-13, November 17, 1994). The statements of Cecille are positive statements which, under existing jurisprudence, are stronger than the denials put forth by respondent (Batiquin v. Court of Appeals, 258 SCRA 334 [1996]). Eight. The reliance by trial court on the testimony of Dr. Decena to the effect that the lacerations suffered by Cecille "might have been sustained by the latter a month, six (6) months or even a year prior to the examination" (Page 12 (e), Order, March 24, 1995) thus implying that respondent could not have committed the crime is highly misplaced. Dr. Decena herself testified that she cannot tell "how old is an old hymenal laceration" because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she "could not point the exact cause" (Pages 7-10, TSN, December 9, 1994). Nevertheless, proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime (People v. Echegaray, 257 SCRA 561 [1996]). Further, in crimes against chastity, the medical examination of the victim's genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. (People v. Arce, 227 SCRA 406 [1993]). Ninth. With respect to the cigarette wounds, Dr, Decena positively testified that the wounds could have been '"aused by cigarette butts as alleged by the victim" (Page 6, TSN, December 9, 1994) which confirms Cecile's testimony (quoted in the Order at page 9) that respondent burned her "right side of the stomach" thrice. The above points are well taken and have impressed upon this Court the merits of the instant petition. The 1987 Constitution in Article III, Section 13 of the Bill of Rights provides: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (Emphasis supplied) In view of the above exception to the constitutional guarantee on bail and in accordance with its rule-making powers, Court, in promulgating the Rules of Court, adopted the following provision:
3

the Supreme

Sec. 7. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. 4 (Emphasis suppplied) In this case, accused-respondent was being charged with rape qualified by the use of a deadly weapon punishable by reclusion perpetua to death. 5 As such, bail is discreationary and not a matter of right. The grant or denial of an application for is, therefore, dependent on whether the evidence of guilt is strong which the lower should determine in a hearing called for the purpose. The determination of the evidence of guilt is strong, in this regard, is a matter of judicial discretion. While the lower court would never be deprived of its mandated prerogative to exercise judicial discretion, this Court would unhesitatingly reverse the trial court's findings if found to be laced with grave abuse of discretion. By judicial discretion, the law mandates the determination of whether proof is evident or the presumption of guilt is strong. 6 "Proof evident" or "Evident proof" in this connection has been held to mean clear, strong evidence which leads a well-guarded disspositionate judgment to the conclusion that the offense has been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is administered. 7"Presumption great" exists when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convinsing to an unbiased judgment and excludes all reasonable probability of any other conlusion. 8 Even though there is a reasonable doubt as to the guilt of accused, if on an examination of the entire record the presumption is great that accused is guilty of a capital offense, bail should be refused. 9(Emphasis and supplied) In other words, the test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the court is ministerially bound to decide which circumstances and factors are present which would show evident guilt or presumption of guilt as defined above. 10 This Court has observed that the lower court's order failed to mention and include some significant factors and circumstances which, to the mind of this Court are strong, clear and convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination of the victim as well as her findings that the latter manifested "psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptom." 11 This particular testimony should have been considered and included in the summary as it was given by an expert witness. Second, the unrebutted offer of compromise by accused-respondent is an implied admission of guilt which should have been noted as an offer of a compromise is generally considered as admissible evidence against the party making it. 12

Page 196 of 217 Aside from failing to mention those important pieces of evidence and testimonies, this Court has likewise observed that the lower court misappplied some doctrines in criminal law. First, the lower court, in its order, intoned the following doctrine that "evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with common experience and observation of mankind." According to the lower court, the credibility of the complainant is suspect because she willingly went with accused-respondent to the resort where she was allegedly raped. In the scene of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant, likewise, never protested nor cried while they on their way to accused-respondent's house. Because of those findings, the court doubted the credibility of complainant and stated that the crime of rape is not to be presumed and that sexual acts between a man and a woman are presumed to be consensual. In overcoming such presumption, much depends on the credibility of the complainant. This Court cannot agree. First, there was no finding of any ill-motive on the part of complainant in filing the rape charge against accused-respondent. This should have been taken into consideration. The following rebuttal of petitioner to the findings of the lower court is more credible: It must also be stressed that Cecille testified that she was forced by respondent to drink gin with the help of his friends by holding her hair and putting the glass on her mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew smoke into her face forcing her to inhale the intoxicating smoke. Whenever she attempted to leave the place, she was forced to sit down by Odiamar and his friends (Pages 6-7, TSN, November 17, 1994). Similarly, Cecille categorically declared that she was threatened by Florece with a gun (Page 17, TSN, November 17, 1994). The requirement of force and intimidation in the crime of rape are relative and must be viewed in light of the victim's perspective and the offender's physical condition (People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will because of fear for life and personal safety. (People v. Ramos, 245 SCRA 405 [19951) In this case, Cecille was only fifteen (l5) years old at the time of the incident in question. At her age, it is reasonable to assume that a shot of gin rendered her tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and deprived of will or reason. The resulting weakness and dizziness which deprived Cecille of reason, will and freedom must be viewed in light of her perception and judgment at the time of the commission of the crime, and not by any hard and fast rule because in "rape cases, submission does not necessarily imply volition." (Querido, 229 SCRA 745 [1994]) It must likewise be taken into consideration that when Cecille went with the group of accused-respondent, she was of the impression that it was just for a joy ride. The conclusion made by the trial court that Cecille must have consented to the sexual act because she acquiesced to go with them in the first place is, therefore, bereft of any legal or factual support, if not non sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed to the bestial acts later committed against her person. Second, the lower court stated that "force and violence in the offense of rape relative terms, depending on the age, size and strength of the parties and their relation to each other." The lower court enunciated this doctrine in finding that the alleged rape was actually a consensual act since the prosecution was unable to show the complainant suffered any injury nor show any evidence that her pants or blouse was torn. Neither was there any evidence that accused-respondent exerted overpowering and overbearing moral influence over the offended party. This Court is of the impression that when the lower court invoked the above doctrine, it readily concluded that complainant agreed to the sexual act disregarding testimonies lending credence to complainant's allegation that she was threatened and intimidated as well as rendered weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication, thereby facilitating the commission of the crime. It was not imperative for the prosecution, in order to prove the elements of force or intimidation to show that Cecille had broken limbs or that her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless, the prosecution still exerted efforts to corroborate Cecille's claim by presenting the physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence. In addition, the lower court doubted complainant's allegation that she was to smoke a small cigarette, presumably marijuana, due to the fact that "the prosecution failed to present any portion of that so-called small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause the said offended party to suffer weakness and dizziness." Said ratiocination is trifling and unpersuasive. In fact, it is even misleading as complainant categorically asserted that what made her weak and dizzy were the smoke of the cigarette and the intoxicating effect of four shots of gin, not the inhalation of the smoke alone. In any case, complainant could not be expected to produce that "portion of that so-called small cigarette." Moreover, one does not need an expert witness to testify on what is common knowledge - that four shots of gin have a "weakening and dizzying" effect on the drinker, especially one as young as the fifteen-year old complainant.

Page 197 of 217 More disturbing than the above misapplication of criminal law doctrines is the lower court's misinterpretation of the medical findings and deliberate withholding of some testimonies which would have shown a very strong likelihood that complainant could indeed have been raped. The following pieces of evidence cited in the summary of the assailed order are indications of misleading findings: First, the lower court did not lend any credence to the medical certificate issued after complainant's physical examination. On the contrary, it interpreted it to mean that the offended party is already experienced in sexual intercourse, after the examining physician had testified that the hymenal lacerations might have been sustained a month, six months or even a year prior to the examination. Interestingly, the lower court failed to mention that Dr. Decena also testified that she cannot tell "how old is an hymenal laceration" because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she "could not point the exact cause." This Court views this apparent lapse on the part of the lower court with and agrees with petitioner, in accordance with well established jurisprudence, that proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime. Further, in against chastity, the medical examination of the victim's genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. 13 And contrary to the theory espoused by the lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual intercourse. Second, the lower court highlighted the testimony of Dr. Decena to the effect the cigarette burns indicated that the lesions near complainant's umbilicus were due to skin diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise positively testified that the wounds could have been "caused by cigarette butts as alleged by the victim" which corroborates Cecille's testimony that respondent burned her "right side of the stomach" thrice. It is thus indicative from the above observations that the lower court abuse its discretion and showed manifest bias in favor of accused-respondent in determining which circumstances are to be considered in supporting its decision as to the guilt of accusedrespondent. In this regard, it must be remembered that the discretion to be exercised in granting or denying bail, according to Basco v. Rapatalo 14 "is not absolute nor beyond control. It must be sound, and exercised reasonable bounds. Judicial discretion, by its very nature, involves the exercise of the judge's individual opinion. It is because of its very nature that the law has wisely provided that its exercise be guided by well-know rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, of the discretion to be exercised in granting or denying bail said: "But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and; but legal and regular." The fact that vital prosecution evidence and testimonies have been irregularly disregarded indicate that they have not been considered at all in arriving at the decision to grant bail. This irregularity is even more pronounced with the misapplication of the two criminal law doctrines cited to support the grant of the bail application. This Court cannot help but observe that the lower court exerted painstaking efforts to show that the evidence of guilt of accused-respondent is not strong by its non sequitur justifications, misleading or unsupported conclusions, irregular disregard of vital prosecution evidence and strained interpretation, if not misinterpretation, of criminal law doctrines. It is the view of this Court that: (1) the testimony of Dr. Decena confirming complainant's allegation that accused-respondent burned the right side of her stomach with cigarette butts, (2) the testimony of Dr. Belmonte stating that complainant exhibited psychological manifestations which are "traceable to the rape incident'', and (3) the unrebutted offer of compromise, are indications of the strength of the evidence of guilt of accused-respondent. Lending credence to petitioner's case is the fact that after the conduct of two (2) preliminary investigations, "no bail" was recommended in the information. According to Baylon v. Sison, 15 such recommendation constitutes clear and strong evidence of guilt of the accused. Aside from the apparent abuse of discretion in determining which circumstances and pieces of evidence are to be considered, the lower court also did not strictly comply with jurisprudential guidelines in the exercise of discretion. As reiterated in Carpio v. Maglalng, 16 discretion is guided by: first, the applicable provisions of the Constitution and the statutes; second, by the rules which this Court may promulgate; and third, by those principles of equity and justice that are deemed to be part of the laws of the land. The present Constitution, as previously adverted to, provides that in crimes punishable by reclusion perpetuawhen evidence of guilt is strong, bail is not matter of right. This Court has reiterated this mandate in Section 7, Rule 14 of the Rules of Court. Recently, this Court laid down the following rules in Basco v. Judge Rapatalo 17which outlined the duties of a judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion;

Page 198 of 217 (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; (Emphasis supplied) (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied. Based on the above-cited procedure and requirements, after the hearing, the court's order granting or refusing bail must contain a summary of the evidence for prosecutions. 18 A summary is defined as "a comprehensive and usually brief abstract or digest of a text or statement." 19 There are two corollary reasons for the summary: First, the summary of the evidence in the order is an extension of the hearing proper, thus, a part of procedural due process wherein the evidence presented during the prior hearing is formally recognized as having been presented and most importantly, considered. The failure to include every piece of evidence in the summary presented by the prosecution in their favor during the prior hearing would be tantamount to not giving them the opportunity to be heard in said hearing, for the inference would be that they were not considered at all in weighing the evidence of guilt. Such would be a denial of due process, for due process means not only giving every contending party the opportunity to be heard but also for the Court to consider every piece of evidence presented in their favor. 20 Second, the summary of the evidence in the order is the for the basis for the judge's exercising his judicial discretion. Only after weighing the pieces of evidence as contained in the summary will the judge formulate his own conclusion as to whether the evidence of guilt against the accused is strong based on his discretion. 21 (Emphasis supplied) Based on the above-stated reasons, the summary should necessarily be a complete compilation or restatement of all the pieces of evidence presented during the hearing proper. The lower court cannot exercise judicial discretion as to what pieces of evidence should be included in the summary. While conceding that some prosecution evidence were enumerated, said enumeration was incomplete. An incomplete enumeration or selective inclusion of pieces of evidence for the prosecution in the order cannot be considered a summary, for a summary is necessarily a reasonable recital of any evidence presented by the prosecution. A "summary" that is incomplete is not a summary at all. According to Borinaga v. Tamin, 22 the absence of a summary in the order would make said order defective in form and substance. Corollarily, an order containing an incomplete "summary" would likewise be defective in form and substance which cannot be sustained or be a semblance of validity. In Carpio v. Maglalang,23 said order was considered defective and voidable. As such, the order granting or denying the application for bail may be invalidated. 24 WHEREFORE, in view of the foregoing, the decision dated August 1, 1997 and the resolution dated December 22, 1997 in CA G.R. No. 42318 are REVERSED and the order dated March 24, 1995 in Criminal Case No. T-1417 is declared void for having been issued in grave abuse of discretion. The court a quo shall immediately issue a warrant for the rearrest of Roderick Odiamar if his bail bond has been approved and thereafter, proceed with dispatch in the disposition of said case. This resolution is immediately executory. SO ORDERED. Separate Opinions

VITUG, J., dissenting opinion; With all due respect, I beg to disagree with the majority although it is not my wish to debate with it in its evaluation of the evidence presented before the court below. Rather, what I find to be difficult is whether this Court would be correct in substituting its own judgment over that of the trial at this stage of the proceedings. In an indictment for a capital offense, the accused is not entitled to bail when the evidence of guilt is strong, 1 and it is the duty of the judge to hear the parties and to make an intelligent assessment of the evidence presented. 2 When the judge views the evidence of guilt in such a capital offense not to be strong, the grant of bail becomes a matter of sound discretion on his part. 3 The extraordinary remedies under Rule 65 of the Rules of Court are not open when the question is whether the trial judge has erred in the exercise of sound discretion. These special reliefs are available only when the judge has committed "grave abuse of discretion amounting to lack or excess of jurisdiction" in his decision or order such as by arbitrarily ignoring the evidence or completely acting on bias and whim. 4 Even assuming that judge has erred in his judgment, so long as grave abuse of discretion is not evident in his action, the aforesaid exceptional remedies are not warranted. Abuse of discretion must be such capricious and whimsical exercise of judgment and must be so patent and gross as to amount to an evasion of positive duty, or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercise in a despotic manner by reason, for instance, of passion and hostility. 5 The Court a quo, I believe, did not commit grave abuse of discretion as that term is so understood. WHEREFORE, I vote to DISMISS the petition. Separate Opinions

Page 199 of 217 VITUG, J., dissenting opinion; With all due respect, I beg to disagree with the majority although it is not my wish to debate with it in its evaluation of the evidence presented before the court below. Rather, what I find to be difficult is whether this Court would be correct in substituting its own judgment over that of the trial at this stage of the proceedings. In an indictment for a capital offense, the accused is not entitled to bail when the evidence of guilt is strong, 1 and it is the duty of the judge to hear the parties and to make an intelligent assessment of the evidence presented. 2 When the judge views the evidence of guilt in such a capital offense not to be strong, the grant of bail becomes a matter of sound discretion on his part. 3 The extraordinary remedies under Rule 65 of the Rules of Court are not open when the question is whether the trial judge has erred in the exercise of sound discretion. These special reliefs are available only when the judge has committed "grave abuse of discretion amounting to lack or excess of jurisdiction" in his decision or order such as by arbitrarily ignoring the evidence or completely acting on bias and whim. 4 Even assuming that judge has erred in his judgment, so long as grave abuse of discretion is not evident in his action, the aforesaid exceptional remedies are not warranted. Abuse of discretion must be such capricious and whimsical exercise of judgment and must be so patent and gross as to amount to an evasion of positive duty, or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercise in a despotic manner by reason, for instance, of passion and hostility. 5 The Court a quo, I believe, did not commit grave abuse of discretion as that term is so understood. WHEREFORE, I vote to DISMISS the petition.

ALMEDA VS. VILLALUZ

G.R. No. L-31665 August 6, 1975
The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash. At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda. At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied. Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court. Hence, the present special civil action for certiorari with preliminary injunction. Two issues are posed to us for resolution: First, whether the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his provisional liberty, and second, whether the amendment to the information, after a plea of not guilty thereto, was properly allowed in both substance and procedure. 1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 1 In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the Constitution, 2 and may not be denied even where the accused has previously escaped detention, 3 or by reason of his prior absconding. 4 In order to safeguard the right of an accused to bail, the Constitution further provides that "excessive bail shall not be required." This is logical cause the imposition of an unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the required remedy." 5

Page 200 of 217 Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail. Aside from the foregoing, the condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. 6 And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court: SEC. 14. Deposit of money as bail. At any time after the amount of bail is fixed by order, the defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall be applied to the payment of the fine and costs for which judgment may be given; and the surplus, if any, shall be returned to the defendant. Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond. But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's past record, 7 the range of his career in crime weighs heavily against letting him off easily on a middling amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry while on provisional liberty is a consideration that simply cannot be ignored. Fortunately, the court is not without devices with which to meet the situation. First, it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process, that under the 1973 Constitution 8 "Trial may proceed notwithstanding his absence provided that he has been duly notified and his failure to appear is unjustified." With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases. 9 It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at making the bail system work in this jurisdiction. 2. Anent the second issue posed by the petitioner, the amendment of the information to include allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to be fully apprised before trial of the charges against him. Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 10 Under our law, a person is considered a habitual delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa orfalsification, he is found guilty of any of said crimes a third time or oftener." 11 The law imposes an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a factor in determining a total penalty. 12 Article 62 of the Revised Penal Code which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency."

Page 201 of 217 as its caption indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing rules for the application of penalties, not in a section defining offense. 13 A recidivist, upon the other hand, is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code. 14 The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion. Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his consent. 15 It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information.16 It cannot likewise be said that the accused is being placed in jeopardy a second time for the past crimes of which he had been convicted. The constitutional objection, on the ground of double jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has long been rejected. 17 The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an alteration in the information. Considering, however, that the petitioner was not deprived of his day in court and was in fact given advance warning of the proposed amendment, although orally, we refrain from disturbing the said amendment. ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and proper for the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent with the views herein expressed. No costs.

TEEHANKEE VS. ROVIRA

G.R. No. L-101 December 20, 1945
Petitioner Haydee Herras Teehankee is a political detainee delivered by the Counter Intelligence Corps, United States Army, to the Commonwealth Government, pursuant to the Proclamation of General of the Army Douglas MacArthur, dated December 29, 1944. She was one of the petitioners in case No. L-44, "Raquiza vs. Bradford," of this court (p. 50, ante). She is now confined in the Correctional Institution for Women under the custody of the Commonwealth Government since October, 1945, when she was thus delivered to the said government. Under the date of October 2, 1945, petitioner, through her husband, Alberto Teehankee, filed with the People's Court a petition wherein, invoking the provisions of Executive Order No. 65, promulgated by His Excellency, the President of the Philippines, dated September 3, 1945, she prayed that her immediate release be ordered on the ground that no evidence exists upon which she could be charged with any act punishable by law, or, alternatively, that the People's Court fix the bail for her provisional liberty, in conformity with the aforesaid executive order, and upon approval of such bail, that an order be forthwith issued directing then officer having official custody of her person to immediately release her. On October 4, 1945, the Hon. Antonio Quirino, one of the Associate Judges of the People's Court, upon considering the said petition, required the Solicitor General "to file his comment and recommendation as soon as possible." On October 5, 1945, the Solicitor General filed recommendation in compliance with said order, stating: "that on the strength of the evidence at hand, the reasonable basil recommended for the provisional release of the petitioner be fixed at Fifty Thousand Pesos (50,000)." On October 9, 1945, the Hon. Leopoldo Rovira, Presiding Judge of the People's Court, entered an order referring the petition for provisional release above mentioned for consideration by the Fifth Division of said Court, but adding the following statement: "in my

Page 202 of 217 opinion, it should be denied notwithstanding the recommendation of the Solicitor General for her provisional release under a bond of Fifty Thousand Pesos (50,000)." On the same date, October 9, 1945, the Hon. Pompeyo Diaz, Associate Judge of said Court, entered an order disposing of said petition and denying the same "in view of the gravity of the offense as can be deduced from the fact that the office of the Special Prosecutors recommends as high as Fifty Thousand Pesos (50,000) for her provisional release." A motion having been filed by petitioner with the People's Court praying said court to reconsider its order of October 9, 1945, denying her petition for provisional release the Court, through Associate Judge Pompeyo Diaz, denied said motion. In her present petition for the writs of certiorari and mandamus originally filed with this Court on October 19, 1945, petitioner avers that the above-mentioned Judges of the People's Court, in denying her petition for provisional liberty under bail, as well as her motion for reconsideration, acted in excess of jurisdiction and with grave abuse of discretion. Paragraph VII of this petition contains her allegations in support of this charge. Under the date of October 21, 1945, respondent Judge Pompeyo Diaz filed his answer stating that the order denying bail "was issued under express mandate of the law", citing section 19 of Commonwealth Act No. 682. Article III, section 1 (16) of the Commonwealth Constitution provides that: All persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. Excessive bail shall not be required. Rule 110 of the Rules of Court provides in the following sections: SEC. 3. Offenses less than capital before conviction by the Court of First Instance. After judgement by a justice of the peace and before conviction by the court of First Instance, the defendant shall be admitted to bail as of right. SEC. 4. Noncapital offenses after conviction by the Court of First Instance. After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court. SEC. 5. Capital offenses defined. A capital offense, as the term the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. SEC. 6. Capital offense not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. SEC. 7. Capital offenses burden of proof. On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is on the prosecution.lawphi1.net SEC. 8. Notice of application to fiscal. When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the fiscal. Section 66 of General Orders, No. 58 stipulates: When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the promotor fiscal. Section 19 of Commonwealth Act No. 682 contains the following proviso: SEC. 19. . . . Provided, however, That existing provisions of law to the contrary notwithstanding, the aforesaid political prisoners may, in the discretion of the People's Court, after due notice to the office of Special Prosecutors and hearing, be released on bail, even prior to the presentation of the corresponding information, unless the Court finds that there is strong evidence of the commission of a capital offense. . . . . Section 22 of Commonwealth Act No. 682 ordains: SEC. 22. The prosecution, trial and disposal of cases before the People's Court shall be governed by existing laws and rules of court, unless otherwise expressly provided herein . . . .

Page 203 of 217 Against the petitioner herein no information had yet been presented when she filed her petition dated October 2, 1945, containing the alternative prayer for the fixing of bail for her provisional liberty. She there invokes Executive Order No. 65 of the President of the Philippines, date September 3, 1945. The proviso above quoted from section 19 of the People's Court Act (Commonwealth At No. 682) also existed in the statute books at the time. The able arguments adduced on both sides have received the most careful consideration of the Court as befits the importance of the questions involved. However, in the view we take of the case, a majority of the Court are of opinion that the only question calling for decision at this time are: (1) whether Article III, section 1 (16) of the Commonwealth Constitution is applicable to the instant case; (2) whether a hearing should be held of the application for bail with attendance of the petitioner and the Solicitor General or the latter's representative; and (3) if so, what kind of hearing it should be. 1. As to the first question, we hold that Article III, section 1 (16) of the Commonwealth Constitution is applicable to the instant case. This Constitutional mandate refers to all persons, not only to persons against whom a complaint or information has already been formally filed. It lays down the rule that all persons shall before conviction be bailable except those charged with capital offenses when evidence of guilt is strong. According to this provision, the general rule is that any person, before being convicted of any criminal offense, shall be bailable, except when he is charged with a capital offense and the evidence of his guilt is strong. Of course, only those persons who have been either arrested, detained or otherwise deprived of their liberty will ever have occasion to seek the benefits of said provision. But in order that a person can invoke this constitutional precept, it is not necessary that he should wait until a formal complaint or information is filed against him. From the moment he is placed under arrest, detention or restraint by the officers of the law, he can claim this guarantee of the Bill of Rights, and this right he retains unless and until he is charged with a capital offense and evidence of his guilt is strong. Indeed if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems to be no legal or just reason for denying its benefits to one as against whom the proper authorities may even yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of innocence in favor of one already formally charged with criminal offense (Constitution, Article III, section 1[17], a fortiori, this presumption should be indulged in favor of one not yet so charged, although already arrested or detained. In Cooleys Constitutional Limitations, 7th edition, pages 436-438, we read the following: Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony were made in the form of an indictment by a grand jury; and this process is still retained in many of the States, while others have substituted in its stead an information filed by the prosecuting officer of the State or county. The mode of investigating the facts, however, is the same in all; and this is through a trial by jury, surrounded by certain safeguards which are a well-understood part of the system, and which the government cannot dispense with. First, we may mention that the humanity of our law always presumes an accused party innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or converts the presumption of innocence into an adjudged fact. If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, while as yet it is not determined that he has committed any crime. If the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by responsible parties to pay it to the government in case the accused should fail to appear, would be sufficient security for his attendance; and therefore, at the common law, it was customary to take security of this character in all cases of misdemeanor; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default. But in the case of felonies, the privilege of giving bail before trial was not a matter of right; and in this country, although the criminal code is much more merciful than it formerly was in England, and in some cases the allowance of bail is almost a matter of course, there are others in which it is discretionary with the magistrate to allow it or not, and where it will sometimes be refused if the evidence of guilty is strong or the presumption great. Capital offenses are not generally regarded as bailable; at least, after indictment, or when the party is charged by the finding of a coroner's jury; . . . ." All the Justice Cooley says in the foregoing quotations regarding the humanity of the law in his jurisdiction and its presumption that an accused party is innocent until he is proved to be guilty, is distinctly true also in ours where the constitutional, statutory, and reglementary provisions on the point have been borrowed from America. The same should be said of what he says regarding the granting of bail for provisional liberty before conviction, and even after, in exceptional cases, of course, always subject to the limitation established by our own Constitutional, laws and rules of court. From the last part of said quotation it follows, firstly, that before indictment or charge by the corner's jury, in the jurisdiction to which the author refers, there may be cases in which even a capital offense is bailable, and, secondly, that even after indictment or the finding of a corner's jury in these jurisdictions, there may be exceptional cases where a capital offense is still bailable. Under our Constitution, as we have seen, all offenses are bailable before conviction except capital offenses when evidence of guilt is strong. In consonance with this constitutional provision, section 3 of Rule 110 of the Rules of Court stipulates that non-capital offenses before conviction by the Court of First Instance shall be bailable as of right; section 4 of the same Rule provides that after conviction by the Court of First Instance such offense may, upon application, be bailable at the discretion of the court; and section 6 of the said Rule provides that "no person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong."

Page 204 of 217 By the common law, all offenses including treason, murder, and other felonies, were bailable before indictment found, although the granting or refusing of such bail in case of capital offenses was a matter within the discretion of the court. (6 C. J., 953; emphasis supplied.) 2. As to the second question, we hold that upon application by a political prisoner or detainee to the People's Court for provisional release under bail, a hearing, summary or otherwise, should be held with due notice to the Office of Special Prosecutors, as well as to the prisoner or detainee. It will be remembered that section 22 of the People's Court Act subjects the prosecution, trial, and disposal of cases before the People's Court to existing laws and rules of court," unless otherwise expressly provide in said act. Consequently, the hearing and disposal of application for bail for provisional release before the People's Court should be governed by existing laws and rules of court, the hearing and disposal of such applications being a mere part of the "prosecution, trial, and disposal" of the corresponding cases before said court. If attention should be directed to the clause "unless otherwise expressly provided herein " in said section 22, in connection with the first proviso of section 19 of the same act, it should be borne in mind that the provisions of said act should be construed in harmony with those of the Constitution, under the well-settled rule of the statutory construction that legislative enactments should be construed, wherever possible, in manner that would avoid their conflicting with the fundamental law. 3. As to the third question. While it is true that the Solicitor General on October 3, 1945, recommended Fifty Thousand Pesos (P50,000) as a reasonable bail "on the strength of the evidence at hand," it may happen that thereafter his office may have secured additional evidence which in addition to or in connection with the already possessed, in his opinion is sufficiently strong to prove petitioner's guilt for a capital offense, in which case, he may yet decide to oppose the application for bail heretofore filed by petitioner at the hearing thereof hereinafter ordered. It will be remembered that petitioner, while under the custody of the Counter Intelligence Corps, United States Army, was charged with (a) "Active Collaboration with the Japanese" and (b) "Previous Association with the enemy" (Raquiza vs. Bradford, p. 50, ante). Under the definition of the treason in the Revised Penal Code, active collaboration with the Japanese and association with them during the war in the Philippines may constitute treason, a capital offense. ART. 114. Any person who, owing allegiance to the United States or the Government of the Philippine Islands, not being a foreigner, . . . adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed 20,000 pesos. (Revised Penal Code.) Of course, it may also happen that either because no such further evidence has come into his possession or because, in his judgement, the public interest would be better served by him withholding the evidence that he has until the trial in the merits, he would prefer not to oppose the application for bail. At the hearing of the application the Solicitor General will be free to adopt one course or the other. If he opposes, the burden of proof will be on him to show the petitioner is not entitled to bail. Petitioner will have the right to offer evidence to prove her right thereto. In fine, the hearing is for the purpose of enabling the People's Court to exercise its sound discretion as to whether or not under the Constitution and laws in force petitioner is entitled to provisional release under bail. WHEREFORE, it is the judgement of this Court that: (a) the order of the People's Court, dated October 9, 1945, denying petitioner's petition for provisional release under bail, and the order of said Court, dated October 13, 1945, denying petitioner's motion for reconsideration of said order of October 9, 1945, which we declare to have been entered with grave abuse of discretion, be set aside; and (b) that for the proper application of the pertinent constitutional, statutory, and reglementary provisions alluded to in the body of this decision, a hearing of the petitioner's application for bail be held before the People's Court with due notice to the Solicitor General, as well as to the petitioner, as hereinabove outlined, said hearing, whether summary or otherwise, to be such as would enable the People's Court to exercise its sound discretion in the disposal of the aforesaid petition. Without costs. So ordered.

PADERANGA VS. COURT OF APPEALS

G.R. No. 115407 August 28, 1995
The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up to the present. 2 In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary investigation therein, said accused,

Page 205 of 217 in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family. 3 Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against him. 4 Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for the prosecution. 5 As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge. 6 Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled court hearings of the case. 7 The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of discretion. 8 Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively conferred on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time. On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this Court has put it in a case "it would be incongruous to grant bail to one who is free." 12

Page 206 of 217 The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 13 Thus, inFeliciano vs. Pasicolan, etc., et al., 14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed against him as it is available to "all persons" 15 where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. 16 On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. 17 in this light, the ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said ex-parte motion and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgentex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest. 19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof. At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter. 20 In other words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied.

Page 207 of 217 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature 21 and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. 22 Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment 23and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, 24 is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. 25 Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. 26 Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. 27 If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in respect of the motion or petition is void. 28 At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. 29 When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. 30 The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires. 31 In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail. We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government prosecutors in said criminal case. 32 It was in fact by virtue of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992. Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quosought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative. The following exchanges bear this out: PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here.

Page 208 of 217 PROSECUTOR ABEJO: I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court. COURT: Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT: By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . . . PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT: Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court? PROSECUTOR ABEJO: Yes, Your Honor. COURT: Without presenting any further evidence? PROSECUTOR ABEJO: Yes, Your Honor. 34 It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution. 3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application. No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and

Page 209 of 217 the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution of the criminal case against petitioner. But then, the certiorariproceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari should not be instituted beyond a period of the three months, 38 the same to be reckoned by taking into account the duration of time that had expired from the commission of the acts complained to annul the same. 39 ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233, promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED. SO ORDERED.

COMMENDADOR VS. DE VILLA

G.R. No. 93177 August 2, 1991
These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident. The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d' etat that took place on December 1 to 9, 1989. The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against them and the creation of the General Court Martial GCM convened to try them. In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408. In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents. In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020. I

Page 210 of 217 Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit: You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS. Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence. On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion. At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a Motion for Summary Dismissal dated February 21, 1990. In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses. On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990. The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides: Art. 71. Charges Action upon. Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief. No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (Emphasis supplied.) They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counter-affidavits. At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39. In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot. On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court. After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison. On August 22, 1990, the trial court rendered judgment inter alia: (a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the

Page 211 of 217 assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14. Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson. On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpuson the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release. II The Court has examined the records of this case and rules as follows. It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial. The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned In the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense. Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights. There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court- martial of jurisdiction." We so held in Arula v. Espino, 1 thus: xxx xxx xxx But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction. The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said: We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counterpart is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-requisite to the exercise of the Army General court martial jurisdiction.. The Article does serve important functions in the administration of court-martial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a court- martial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level. xxx xxx xxx Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War

Page 212 of 217 Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but left unchanged the language here under consideration. compensable pre-requisite to the exercise of Army general court-martial jurisdiction A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings. As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than two years ago in Kapunan v. De Villa, 2 where we declared: The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood its affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them. That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P. D, No. 77, as amended by P.D. No. 911. The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff. Article of War No. 8 reads: Art. 8. General Courts-Martial. The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority. ... While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M 6 in the Comment filed for him and the other respondents by the Solicitor General. Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit: Art. 18. Challenges. Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause. The history of peremptory challenge was traced in Martelino v. Alejandro,
3

thus:

In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, its aside from the fact that the officer corps of the developing army was numerically made equate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and

Page 213 of 217 that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court- martial or by the accused. After December 17,1958, when the Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War 11 in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12,1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause. On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them. On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed the peremptory challenge, thus: No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced. On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree. On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein. P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically. It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases.Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul. Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge. We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime. The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers. The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the lawmakers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve. The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings. The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals 4 where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals.

Page 214 of 217 It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts. In Martelino, we observed as follows: It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courtsmartial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion what in the language of Rule 65 is referred to as "grave abuse of discretion" as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition ... . The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions for habeas corpus and quo warranto. 5 In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction. We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. xxx xxx xxx National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was substantial compliance with the requirements of due process and the right to a speedy trial. The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus: ... The AFP Special Investigating Committee was able to complete it pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The precharge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been

Page 215 of 217 disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff. While accepting this explanation, the Court nevertheless must reiterate the following admonition: This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dissmiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion may even be punished as a court martial may direct. 6 It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991. III Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula: The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ ofcertiorari. As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released. ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs. SO ORDERED. Separate Opinions SARMIENTO, J., concurring: I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would deny bail to accused military personnel. The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all persons" the coverage of the right. I believe that military officers fall within "persons". The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice." 3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous" elements of society?

Page 216 of 217 We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be granted the same right. The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government of laws, not tradition. If there are precedents that attest to the contrary, I submit that a reexamination is in order. Separate Opinions SARMIENTO, J., concurring: I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would deny bail to accused military personnel. The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all persons" the coverage of the right. I believe that military officers fall within "persons". The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice." 3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous" elements of society? We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be granted the same right. The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government of laws, not tradition. If there are precedents that attest to the contrary, I submit that a reexamination is in order.

MAGNO VS. ABBAS

G.R. No. L-19361 February 26, 1965
In Criminal Case No. 285-A filed with the Municipal Court of the City of Davao against Francisco Nuez and others, for Robbery with Rape, petitioner Pepito Magno was arrested by virtue of a warrant of arrest issued by said court. After proper proceedings, said court forwarded the case to the Court of First Instance of Davao where it was docketed as Criminal Case No. 7155. Prior to the filing of the information in the latter court, petitioner filed a motion for bail, but the same was denied by the respondent judge on the ground that it was filed prematurely. A second motion for bail was filed subsequently by petitioner, and after a hearing held thereon, the respondent judge issued a order on November 24, 1961 granting the motion and fixing the bail bond in the sum of P40,000.00. In the afternoon of the same date, however, the fiscal moved for a reconsideration of the order, claiming that he had just received sufficient evidence to prove the guilt of petitioner. The Court stayed the effectivity of the order granting bail and, after a hearing on the motion for reconsideration, the order was finally set aside and another was issued denying the motion for bail. Petitioner's motion for reconsideration of this last order having been denied, he filed the present special civil action of certiorari, claiming that, in denying his motion for bail, the respondent judge committed a grave abuse of discretion. In the order of the respondent judge complained of, His Honor states the following: The hearing of an application for bail is summary in nature. On such hearing, the Court "does not seek to try the merits or to enter into any nice inquiry as to the weight that would be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. (8 C.J.S. 93, 94)." (Padilla, Criminal Procedure 1955 ed. p. 270 citing Ocampo vs. Bernabe et al., 77 Phil. 55). It has also been held that "to sustain a refusal of bail in a capital case it is enough that evidence induces the belief that the accused have committed the offenses." (Ex-parte Page 255, p. 887, 82 Cal. App. 576). According to the law as interpreted by the courts like the case cited above it appears that in an application for bail the Court does not go into the merits of the case. Therefore, inconsistency or contradiction in the testimony of a witness for the prosecution is not sufficient in itself to entitle the

Page 217 of 217 accused to bail. It is enough, for the denial of bail, that the proof of guilt is evident or thepresumption great. It is sufficient that the evidence presented by the prosecution induces the belief that the accused had committed the offense. Guided by the above ruling the Court is of the opinion that the accused shall be denied bail. He is accused of a capital offense. The evidence presented during the hearing of the petition for bail, without passing upon the merits of the evidence, shows that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other persons. The least that can be said about the evidence on record, without passing on the merits, is that the proof of guilt of the accused is presumptively strong.1wph1.t It is petitioner's contention that, while under the Constitution and the Rules of Court, a person charged with a capital offense may be denied bail, before conviction, only if the evidence of guilt against him is strong, the respondent judge denied him bail only on the strength of a strong presumption of guilt, thereby committing a grave abuse of discretion. Petitioner's contention is without merit. A reading of the order complained of clearly shows that, in the opinion of the respondent judge, the evidence presented during the summary hearing on the motion for bail showed "that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other persons." Casting aside other unnecessary pronouncements made in the order complained of, we believe that what the respondent judge really found and held was that the evidence of guilt presented against petitioner was strong and justified denial of his motion for bail. At this stage of the proceeding, there is nothing before us, sufficient to justify the conclusion that His Honor erred or abused his discretion in so holding. PREMISES CONSIDERED, the petition under consideration is dismissed and the writ prayed for denied, with costs.

SUNGA VS. SALUD

A.M. Matter. No. 2205-MJ November 19, 1981
It was the imposition of a bail bond in the amount of P18,000.00 for the alleged violation of Presidential Decree No. 583, the penalty for which is prision mayor or a fine ranging from P5,000.00 to P10,000.00 or both, that led to a verified letter-complaint from Buenaventura B. Sunga for grave abuse of authority or, at the very least, ignorance of the law. Complainant was accused in a criminal case for unlawful ejectment. Upon being required to comment, respondent Judge denied such accusation and maintained that considering the penalty of prision mayor, the bail bond which he fixed at P18,000.00 could not be considered excessive. The matter was then referred to Executive Judge Bonifacio Cacdac, Jr. of the Court of First Instance of Cagayan, Branch V at Tuguegarao, for investigation, report and recommendation. He conducted such investigation. In his report, based primarily on a motion to dismiss filed by the complainant himself manifesting lack of interest, he recommended the dismissal of the complaint. He likewise could not find any justification for the charge of excessive bail. Court Administrator Justice Lorenzo Relova, agreeing with the recommendation of Deputy Court Administrator Romeo Mendoza, submitted to the Court his report "that respondent Judge Concepcion Salud be found guilty of grave abuse of authority for which he should be fined equivalent to one (1) month salary, not chargeable to his leave credits and warned that a repetition of such infraction in the future will be dealt with more severely." 1 This Court pursuant to the mandate that excessive bail should not be required feels that a more severe penalty should be imposed. 2 The members of the Judiciary were reminded in Circular No. 1, 3 dealing with the fixing of the bail bond in criminal cases, of the authoritative doctrine in Villasenor v. Abano. 4 The following factors are to be considered:" 1. Ability of the accused to give bail; 2. Nature of the offense; 3. Penalty for the offense charged; 4. Character and reputation of the accused; 5. Health of the accused; 6. Character and strength of the evidence; 7. Probability of the accused appearing in trial. 8. Forfeiture of the other bonds; 9. Whether the accused was a fugitive from justice when arrested; and 10. If the accused is under bond for appearance at trial in other cases." 5 This Court, in the later case of De la Camara vs. Enage 6 was equally explicit on the matter. Thus: "Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States Constitution limits itself to a prohibition against excessive bail. As construed in the latest American decision, 'the sole permissible function of money bail is to assure the accused's presence at trial, and declared that "bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment. 7 It should be stressed, contrary to the thinking of Executive Judge Cacdac, that the mere assertion of lack of interest to prosecute is not automatically followed by the matter being considered closed. WHEREFORE, respondent Judge is fined equivalent to two (2) months salary, not chargeable to his leave credits. He is warned that a repetition of a failure to apply constitutional provisions would result in a much more severe penalty. Let a copy of this resolution be spread on his record.