LIBERTY OF ABODE; RIGHT TO TRAVEL EN BANC [G.R. No. 14639. March 25, 1919.

ZACARIAS VILLAVICENCIO ET AL., petitioners, vs. JUSTO LUKBAN, ET AL., respondents.

The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived this right.

RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL RESTRICTED BY CONDITIONS OF BAIL. The condition imposed upon an accused on bail to make himself available at all times whenever the Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. v. Court of Appeals, et al., No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). ID.; ID.; ID.; ID.; CASE AT BAR. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes. ID.; ID.; ID.; NOT A LIMITATION ON THE INHERENT POWER OF THE COURT TO USE ALL MEANS TO CARRY THEIR ORDERS INTO EFFECT. Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court). EN BANC [G.R. No. 88211. September 15, 1989.]

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents.

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN TO ONE'S COUNTRY, NOT AMONG THE RIGHTS GUARANTEED. The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW. It is the court's well-considered view that the right to return may be considered, as a generally accepted principle of international law and under our Constitution, is part of the law of the land [Art. II Sec. 2 of the Constitution.] ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE FROM THE RIGHT TO TRAVEL. It is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).] ID.; PRESIDENT'S POWER UNDER THE 1987 CONSTITUTION; EXTENT AND LIMITATION. Consideration of tradition and the development of presidential power under the different constitutions are essential for a complete understanding of the extent of and limitations to the President's powers under the 1987 Constitution. Although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. ID.; PRESIDENT'S RESIDUAL POWER TO PROTECT THE GENERAL WELFARE OF THE PEOPLE; THE POWERS INVOLVED. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand. 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 tranquillity 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. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; REQUEST TO BE ALLOWED TO RETURN TO THE PHILIPPINES; TO BE TREATED AS ADDRESSED TO THE RESIDUAL UNSTATED POWERS OF THE PRESIDENT. The request or demand of the Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or denied. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL OF REQUEST TO BE ALLOWED TO RETURN TO THE PHILIPPINES, NOT A GRAVE ABUSE OF DISCRETION. We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's decision. The documented history of the efforts of the Marcoses and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos. With these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.

EN BANC [G.R. No. L-81958. June 30, 1988.]

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs. HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas Employment Administration, respondents. The Constitution declares that: Sec 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. 30 "Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment. The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General. The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life. FREEDOM OF ASSOCIATION EN BANC [G.R. No. L-27833. April 18, 1969.]

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE-CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners, vs. COMMISSION ON ELECTIONS, respondent.

ID.; ID.; FREEDOM OF ASSEMBLY; SCOPE. The Bill of Rights prohibits abridgment by law of freedom of speech or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the case of United States v. Bustos, this right is a necessary consequence of our republican institution and complements the right of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. ID.; ID.; ID.; PURPOSE TO FORM ASSOCIATION MUST NOT BE CONTRARY TO LAW. Our Constitution recognizes the freedom to form association for purposes not contrary to law. With or without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantees, which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution. ID.; ID.; ID.; STRESS SHOULD BE ON ITS POLITICAL SIGNIFICANCE. In a sense, the stress on the freedom of association should be on its political significance. If such a right were non-existence, then the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the Constitution may well become a thing of the past.

ID.; ID.; ID.; ID.; EFFECT ON POLITICAL PARTIES. Political parties which, as is ordinarily the case, assume the role alternately of being in the majority or in the minority as the will of the electorate dictates, will lose their constitutional protection. It is undeniable, therefore, that the utmost scope should be afforded this freedom of association. ID.; ID.; ID.; FAVORABLE EFFECTS. It is indispensable not only for the freedom of association enhancing the respect that should be accorded a human personality but equally so for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own program of government would not be nullified or frustrated ID.; ID.; ID.; LIMITATIONS. The Constitution limits the freedom of association in the sense that there could be an abridgment of the right to form associations or societies when their purposes are "contrary to law." How should the limitation "for purposes not contrary to law" be interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form associations or societies. ID.; ID.; ID.; PROHIBITION IN R.A. 4880 OF TOO EARLY NOMINATION OF CANDIDATES AND LIMITATION ON THE PERIOD OF ELECTION CAMPAIGN HELD VALID. The prohibition in R.A. No. 4880 of too early nomination of candidates presents a question that is not too formidable in character. The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there an infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain its validity. ID.; ID.; ID.; FATAL CONSTITUTIONAL INFIRMITY OF VAGUENESS MAY BE STRICKEN DOWN. It is a wellsettled principle that stricter standards of permissible statutory vagueness may be applied to statute having inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. Where the statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the statute is inescapable. ID.; ID.; FREEDOM OF THE PRESS AND OF ASSEMBLY; VIOLATION THEREOF BY LIMITATION ON PERIOD OF "ELECTION CAMPAIGN " OR "PARTISAN POLITICAL ACTIVITY" IN R.A. 4880. The provision in R.A. No. 4880 limiting the period of "election campaign" or "partisan political activity" suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court cannot allow to pass. ID.; ID.; ID.; OBJECTION RAISED AS TO VAGUENESS MINIMIZED IN INSTANT CASE. What removes the sting from constitutional objection of vagueness in R.A. No. 4880 regarding limitation on period of election campaign or partisan political activity is the enumeration of the acts deemed included in the terms "election campaign" or "partisan political activity." They are: "(a) forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate or party; (c) making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party; (f) giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly. As thus limited, the objection that may be raised as to vagueness has been minimized, if not totally set at rest.

EN BANC [AC-1928. December 19, 1980.]

In the matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILLION (IBP Administrative Case No. MDD-1).

ID.; ID.; MEMBERSHIP IN THE BAR, A PRIVILEGE. Membership in the bar is a privilege burdened with conditions. Failure to abide by any of them entails the loss of such privilege if the gravity thereof warrants such drastic move. Thereafter a sufficient time having elapsed and after actuations evidencing that there was due contrition on the part of the transgressor, he may once again be considered for the restoration of such a privilege. LEGAL ETHICS; ATTORNEYS; ORGANIZATION OF THE INTEGRATED BAR OF THE PHILIPPINES LEGALLY UNOBJECTIONABLE. The integration of the Philippine Bar raises no constitutional question and is therefore legally unobjectionable, and within the context of contemporary conditions in the Philippines, has become an imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively. ID.; ID.; ID.; EFFECT OF A MEMBER'S NON-PAYMENT OF REQUIRED FEES. The IBP Board of Governors has the authority to recommend to the Supreme Court the removal of a delinquent member's name from the Roll of Attorneys as found in Rule of Court: "Effect of non-payment of dues. Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be ground for the removal of the same of the delinquent member from the Roll of Attorneys." (Section 10, Rule of Court 139-A).

THIRD DIVISION [G.R. No. 85279. July 28, 1989.]

SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISIO T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioners, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO RTC, BRANCH 98, QUEZON CITY, respondents.

ADMINISTRATIVE LAW; CIVIL SERVICE; PROHIBITION TO GOVERNMENT EMPLOYEES FROM STRIKING. While the Constitution and the Labor Code are silent as to whether or not government employees may strike, they are prohibited from striking, by express provision of Memorandum Circular No. 6 series of 1987 of the Civil Service Commission and as implied in E.O. No. 180. ID.; ID.; TERMS AND CONDITIONS OF EMPLOYMENT IN GOVERNMENT ARE GOVERNED BY LAW; EMPLOYEES SHALL NOT STRIKE TO SECURE CHANGES. Section 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to Self-Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and governmentowned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof." LABOR AND SOCIAL LEGISLATION; EXECUTIVE ORDER NO. 180; ALLOWS GOVERNMENT EMPLOYEES TO NEGOTIATE WHERE TERMS AND CONDITIONS OF EMPLOYMENT ARE NOT AMONG THOSE FIXED BY LAW. E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees, allows negotiation where the terms and conditions of employment involved are not among those fixed by law. ID.; ID.; ID.; REMEDIES IN LIEU OF RIGHT TO STRIKE. Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law.

ID.; CIVIL SERVICE; SOCIAL SECURITY SYSTEM EMPLOYEES ARE PART THEREOF AND COVERED BY MEMORANDUM PROHIBITING STRIKES. SSS employees are part of the civil service and are covered by the Civil Service Commission's memorandum prohibiting strikes. ID.; ID.; ID.; ID.; REGIONAL TRIAL COURT HAS JURISDICTION TO ISSUE AN INJUNCTION TO ENJOIN SAID STRIKE; REASON. The Public Sector Labor-Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate. ID.; LABOR RELATIONS; STRIKES; NATIONAL LABOR RELATIONS COMMISSION HAS NO JURISDICTION TO ISSUE AN INJUNCTION TO RESTRAIN AN ILLEGAL STRIKE STAGED BY SOCIAL SECURITY SYSTEM EMPLOYEES; REASONS. An injunction may be issued to restrain it. It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor-Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute. BOY SCOUTS OF AMERICA ET AL. v. DALE CERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 99-699. Argued April 26, 2000-Decided June 28, 2000

Applying New Jersey's public accommodations law to require the Boy Scouts to readmit Dale violates the Boy Scouts' First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group's internal affairs by forcing it to accept a member it does not desire. Roberts v. United States Jaycees, 468 U. S. 609, 623. Such forced membership is unconstitutional if the person's presence affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13. However, the freedom of expressive association is not absolute; it can be overridden by regulations adopted to serve compelling

641 state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Roberts, 468 U. S., at 623. To determine whether a group is protected, this Court must determine whether the group engages in "expressive association." The record clearly reveals that the Boy Scouts does so when its adult leaders inculcate its youth members with its value system. See id., at 636. Thus, the Court must determine whether the forced inclusion of Dale would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. The Court first must inquire, to a limited extent, into the nature of the Boy Scouts' viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs. See Hurley, 515 U. S., at 576-577. This Court disagrees with the New Jersey Supreme Court's determination that the Boy Scouts' ability to disseminate its message would not be significantly affected by the forced inclusion of Dale. First, contrary to the state court's view, an association need not associate for the purpose of disseminating a certain message in order to be protected, but must merely engage in expressive activity that could be impaired. Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, its method of expression is protected. Third, the First Amendment does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." Given that the Boy Scouts' expression would be burdened, the Court must inquire whether the application of New Jersey's public accommodations law here runs afoul of the Scouts' freedom of expressive association, and concludes that it does. Such a law is within a State's power to enact when the legislature has reason to believe that a given group is the target of discrimination and the law does not violate the First

Amendment. See, e. g., id., at 572. The Court rejects Dale's contention that the intermediate standard of review enunciated in United States v. O'Brien, 391 U. S. 367, should be applied here to evaluate the

642 Syllabus competing interests of the Boy Scouts and the State. Rather, the Court applies an analysis similar to the traditional First Amendment analysis it applied in Hurley. A state requirement that the Boy Scouts retain Dale would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the freedom of expressive association. In so ruling, the Court is not guided by its view of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of an organization's expression does not justify the State's effort to compel the organization to accept members in derogation of the organization's expressive message. While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem. NON-IMPAIRMENT OF CONTRACTS EN BANC [G.R. No. 101083. July 30, 1993.]

OPOSA VS FACTORAN

CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES; RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY, CONSTRUED. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: "SEC. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." This right unites with the right to health which is provided for in the preceding section of the same article: "SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them." While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. ID.; ID.; TIMBER LICENSES; NATURE THEREOF; NON-IMPAIRMENT CLAUSE MAY NOT BE INVOKED; CASE AT BAR. all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. In Tan vs. Director of Forestry, (125 SCRA 302, 325 [1983]) This Court held: ". . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. 'A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it

create a vested right; nor is it taxation' (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576) . . ." We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: (190 SCRA 673 684 [1990]) ". . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]." Since timber licenses are not contracts, the non-impairment clause, which reads: "SEC. 10. No law impairing the obligation of contracts shall be passed." In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such a law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp., (110 Phil. 198, 203 [1960]) this Court stated: "The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare." The reason for this is emphatically set forth in Nebia vs. New York, (291 U.S. 502, 523, 78 L. ed. 940 947949) quoted in Philippine American Life Insurance Co. vs. Auditor General, (22 SCRA 135, 146-147 [1968]) to wit: "'Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.'" In court, the non-impairment clause must yield to the police power of the state. (Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp., supra; Phil. American Life Insurance Co. vs. Auditor General, supra; Alalyan vs. NLRC, 24 scra 172 [1968]; Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54 [1974]; Kabiling vs. National Housing Authority, 156 SCRA 623 [1987]).

ORTIGAS AND CO. VS CA In general, we agree that laws are to be construed as having only prospective operation. Lex prospicit, non respicit. Equally settled, only laws existing at the time of the execution of a contract are applicable thereto and not later statutes, unless the latter are specifically intended to have retroactive effect. A later law which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts. But, the foregoing principles do admit of certain exceptions. One involves police power. A law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts. Police power legislation is applicable not only to future contracts, but equally to those already in existence. Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health, morals, peace, education, good order, safety, and general welfare of the people. Moreover, statutes in exercise of valid police power must be read into every contract. Noteworthy, in Sangalang vs. Intermediate Appellate Court, we already upheld MMC Ordinance No. 81-01 as a legitimate police power measure. The trial court's reliance on the Co vs. IAC, is misplaced. In Co, the disputed area was agricultural and Ordinance No. 81-01 did not specifically provide that "it shall have retroactive effect so as to discontinue all rights previously acquired over lands located within the zone which are neither residential nor light industrial in nature," and stated with respect to agricultural areas covered that "the zoning ordinance should be given prospective operation only." The area in this case involves not agricultural but urban residential land. Ordinance No. 81-01 retroactively affected the operation of the zoning ordinance in Greenhills by reclassifying certain locations therein as commercial. Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA 533 (1979), the contractual stipulations annotated on the Torrens Title, on which Ortigas relies, must yield to the ordinance. When that stretch of Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981, the restrictions in the contract of sale between Ortigas and Hermoso, limiting all construction on the disputed lot to single-

family residential buildings, were deemed extinguished by the retroactive operation of the zoning ordinance and could no longer be enforced. While our legal system upholds the sanctity of contract so that a contract is deemed law between the contracting parties, nonetheless, stipulations in a contract cannot contravene "law, morals, good customs, public order, or public policy." Otherwise such stipulations would be deemed null and void. Respondent court correctly found that the trial court committed in this case a grave abuse of discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01 as applicable to Civil Case No. 64931. In resolving matters in litigation, judges are not only duty-bound to ascertain the facts and the applicable laws, they are also bound by their oath of office to apply the applicable law.

FREE ACCESS TO COURTS G.R. No. L-21707 March 18, 1967

FELIPE ACAR, ET AL., petitioners, vs. HON. INOCENCIO ROSAL, in his capacity as Executive Judge, Court of First Instance of Negros Oriental, 12th Judicial District, respondent. All over the world, Constitutions share one purpose: to protect and enhance the people's interest, as a nation collectively and as persons individually. The Philippine Constitution is no exception. Interpretation of its provisions, therefore, should be done with a view to realizing this fundamental objective. Among the provisions in our Constitution is one both, timely and far-reaching, as it affects the people at large and relates to social justice problems of the day. It is Subsec. 21, Sec. I of Art. III: "Free access to the courts shall not be denied to any person by reason of poverty." It is the one involved in this case. The sole issue herein is whether petitioners were deprived, by the orders in question, of free access to the courts by reason of poverty. In denying petitioners' motion to litigate as paupers, respondent Judge adopted the definition at "pauper" in Black's Law Dictionary (at p. 1284) as "a person so poor that he must be supported at public expense". And, as afore-stated, he ruled that petitioners are not that poor. Such interpretation, to our mind, does not fit with the purpose of the rules on suits in forma pauperis and the provision of the Constitution, in the Bill of Rights, that: "Free access to the courts shall not be denied to any person by reason of poverty." As applied to statutes or provisions on the right to sue in forma pauperis, the term has a broader meaning. It has thus been recognized that: "An applicant for leave to sue in forma pauperis need not be a pauper; the fact that he is able-bodied and may earn the necessary money is no answer to his statement that he has not sufficient means to prosecute the action or to secure the costs" (14 Am. Jur. 31). It suffices that plaintiff is indigent (Ibid.), not a public charge. And the difference between "paupers" and "indigent" persons is that the latter are "persons who have no property or source of income sufficient for their support aside from their own labor, though self-supporting when able to work and in employment" (Black's Law Dictionary, p. 913, "Indigent", citing People vs. Schoharie County, 121 NY 345, 24 NE 830). It is therefore in this sense of being indigent that "pauper" is taken when referring to suits in forma pauperis. Black's Law Dictionary in fact defines pauper, thus: "A person so poor that he must be supported at public expense; also a suitor who, on account of poverty, is allowed to sue or defend without being chargeable with costs" (p. 1284, emphasis supplied). CUSTODIAL INVESTIGATION EN BANC [G.R. No. 122485. February 1, 1999.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY Y AMPARADO, accused-appellant.

, considering the heavy penalty of death and in order to ensure that the evidence against an accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting,

detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation 40 in accordance with the Constitution, jurisprudence and Republic Act No. 7438. 41 It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments: 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means telephone, radio, letter or messenger with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun; 10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.

SECOND DIVISION [G.R. No. 131036. June 20, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DONATO DEL ROSARIO, defendant-appellant.

A confession to be admissible must be: (1) express and categorical; (2) given voluntarily, and intelligently where the accused realizes the legal significance of his act; (3) with assistance of competent and independent counsel; (4) in writing, and in the language known to and understood by the confessant; and (5) signed, or if the confessant does not know how to read and write, thumbmarked by him. 14 As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. 15 As an officer of the court, he has in his favor the presumption of regularity in the performance of his sworn duties and responsibilities. 16 Absent any showing that Atty. dela Cruz was remiss in his duty, the confession of the accused-appellant is valid and binding upon him and is thus admissible in evidence.

EN BANC [G.R. No. 79269. June 5, 1991.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. CONSTITUTIONAL LAW; RIGHT OF ACCUSED TO BAIL; GOVERNED BY THE LAW AT THE TIME THE COURT RESOLVED THE PETITION FOR BAIL. At the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. ID.; ID.; ABSOLUTE WHEN THE OFFENSE CHARGED IS PUNISHABLE BY ANY PENALTY LOWER THAN RECLUSION PERPETUA. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution and provides thus: Section 3, Rule 114 of the Rules of Court, as amended. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the right is absolute. ID.; ID.; ID.; CANNOT BE DENIED EVEN IF THE SECURITY OF THE STATE SO REQUIRES; PEOPLE VS. HERNANDEZ, ET AL. (99 PHIL. 515) CITED. And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, in-dividual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom." ID.; ID.; ID.; SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: "The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be

released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection." ID.; ID.; SUBJECT TO THE SOUND DISCRETION OF THE COURT IF THE OFFENSE CHARGED IS PUNISHABLE BY RECLUSION PERPETUA. If the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. (Teehankee vs. Director of Prisons [76 Phil. 756, 770] But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In the same case, We held: "The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: 'The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!" ID.; ID.; RIGHT OF PROSECUTION TO PRESENT EVIDENCE TO DENY THEREOF; WHEN AVAILABLE. The prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. ID.; ID. ; GUIDELINES IN FIXING BAILBOND. We agree with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: "Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . ." ID.; ID.; SUBJECT TO THE LIMITATION THAT PERSON APPLYING FOR ADMISSION TO BAIL SHOULD BE IN THE CUSTODY OF THE LAW; APPLICABLE IN CASE AT BAR. He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." When the parties in G. R. No. 76009 stipulated that: "b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person." they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his coaccused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. ID.; ID.; MAY BE WAIVED BY THE ACCUSED. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be heard. Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states : ". . . These rights cannot be waived except in writing and in the presence of counsel." This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the Constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. Republic Act No. 6968 cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." CRIMINAL LAW; REBELLION; IMPOSABLE PENALTY AS AMENDED BY R. A. NO. 6968. It must be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: "Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua."

SECOND DIVISION [G.R. No. 115407. August 28, 1995.]

MIGUEL P. PANDERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; RULE; RATIONALE. 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. (Almeda vs. Villaluz, etc., et al., L31665, August 6, 1975, 66 SCRA 38.) 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. (Santiago vs. Vasquez, etc., et al ., G.R. Nos. 99289-90, January 27, 1993, 217 SCRA 633.) As this Court has put it in a case, "it would be incongruous to grant bail to one who is free." (Mendoza vs. Court of First Instance of Quezon, etc., et al., L-35612-14, June 27, 1973, 51 SCRA 369.) 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. (Aguirre et al. vs. Belmonte, etc., A.M. No. RTJ-931052, October 27, 1994, 237 SCRA 778.) ID.; ID.; ID.; REQUISITE. As a paramount requisite, only those persons who have either been arrested, detained, or otherwise 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" (De la Camara vs. Enage, etc., L-32951-2, September 17, 1971, 41 SCRA 1.) where the offense is bailable. This rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. (Herras Teehankee vs. Rovira, et al., 75 Phil. 634 [1945].) 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. (Dinapol vs. Baldado, etc., A.M. No. RTJ-92-898, August 5, 1993, 225 SCRA 110.) CONSTITUTIONAL LAW; RIGHT TO BAIL; WHEN AVAILABLE. 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 (People vs. Donato, etc., et al., G.R. No. 79269, June 5, 1991, 198 SCRA 130.) 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. (De la Camara vs. Enage, etc., L-32951-2, September 17, 1971, 41 SCRA 1.) ID.; ID.; ID.; RULE AND EXCEPTION. 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 (Sec. 7, Rule 114, as amended; see also Borinaga vs. Tamin, etc., A.M No. RTJ-93-936, September 10, 1993, 226 SCRA 206. ) and the evidence of guilt is strong. ID.; ID.; ID.; PROCEDURE FOLLOWED. 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, (Go vs. Court of Appeals, et al., G.R. No. 106087, April 7, 1993, 221 SCRA 397; Aurillo, Jr. vs. Francisco, etc., et al., A.M. No. RTJ-93-1097, August 12, 1994, 235 SCRA 283.) 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. (Borinaga vs. Tamin, etc.) Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum (Section 8, Rule 114, as amended.) Where such a hearing is set upon proper motion or petition, the prosecution must be given 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. (People vs. Dacudao, etc., et al., G.R. No. 81389, February 21, 1989, 170 SCRA 489.) 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. (People vs. San Diego, etc., et al., L-29676, December 24, 1968, 26 SCRA 523.) At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. (Ocampo vs. Bernabe, 77 Phil. 55 [1946].) 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. (People vs. Casingal, et al., G.R. No. 87173, March 29, 1995.) 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. (Baylon, etc. vs. Sison, A.M. No. 92-7-360-0, April 6, 1995.)

RIGHTS OF THE ACCUSED EN BANC [G.R. No. 127126. September 17, 1998.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODRIGO CALMA y SACDALAN, accused-appellant. The law presumes that an accused is innocent and this presumption stands until it is overturned by competent and credible proof. It is incumbent upon the prosecution to establish the guilt of the defendant beyond a reasonable doubt. The reasonable doubt should necessarily pertain to the facts constitutive of the crime charged. 21 Discrepancies that touch on significant facts are crucial on the guilt or innocence of an accused. 22 Conversely, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime are not grounds for acquittal. 23 The rule of falsus in uno, falsus in omnibus has never been regarded as positive, mandatory, or inflexible. 24 Surmises and conjectures have no place in a judicial inquiry and are especially anathema in a criminal prosecution. 25 In a criminal prosecution a reasonable doubt can be created by many things but to be sufficient to prevent a conviction, it must arise from the evidence adduced or from the lack of evidence, and can arise from no other legitimate source. 26 While no test definitively determines which is and which is not considered reasonable doubt under the law, it must necessarily involve genuine and irreconcilable contradictions based, not on suppositional thinking, but on the hard facts constituting the elements of the crime. It is not mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. 27 It should not be vague, speculative or whimsical, but intelligent, reasonable and impartial and based on a careful examination and conscious consideration of all the evidence in the case. 28 A reasonable doubt is not such a doubt as any man may start by questioning for the sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony, for it is possible always to question any conclusion derived from testimony, but such questioning is not what is reasonable doubt. Rather, it is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the charge. 29 Absolute certainty is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty must

attend every proposition of proof requisite to constitute the offense. 30 Absolute, mathematical, or metaphysical certainty is not essential, and besides, in judicial investigation, it is wholly unattainable. Moral certainty is all that can be required. In the instant case, accused-appellant exhorts this court to consider the lack of internal ejaculation and the absence of any injury on the part of the victims, which were testified to by the prosecution witnesses themselves, and their continuous show of affection towards their father, as testified to by the defense witnesses, as indicia of reasonable doubt warranting his acquittal. They lied, argues accused-appellant, because their testimony is improbable, if not impossible, and their affectionate behavior towards him, their alleged rapist, was a contradiction in terms. We agree with the Solicitor General that these contentions are conjectural. On the charge that the narrations of the victims were fabricated for the purpose of evading the questions as to why no spermatozoa was found in them during the physical examinations and why they did not get pregnant, the Solicitor General correctly noted that Annalyn and Roselyn were last sexually abused by appellant in March 1996 while the physical examinations were conducted on May 3, 1996 or almost two (2) months thereafter. Hence, even assuming that he ejaculated while they had intercourse, the spermatozoa would have been washed off by May 3, 1996, not to mention that the lifetime of spermatozoa definitely does not run to two (2) months. In any event, the presence or absence of spermatozoa in the vagina is not even determinative of the commission of rape because a sperm test is not a sine qua non for the successful prosecution of a rape case. 31 The important element in rape is penetration of the pudenda and not emission of seminal fluid. 32

EN BANC [G.R. No. 128823-24. December 27, 2002.]

PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO FLORES , JR. y FLORES ALIAS "PESIONG", accused-appellant. It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not. 25 It is at once apparent, from a reading of the above-quoted complaints, that accused-appellant was denied the constitutional right to be informed of the nature and cause of the accusation against him. This right has the following objectives: 26 1. 2. To furnish the accused with such a description of the charge against him as will enable him to make the defense; To avail himself of his conviction or acquittal for protection against further prosecution for the same cause;

3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. The right cannot be waived for reasons of public policy. 27 Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed. 28 For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information. 29 It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure Section 8, Rule 110 thereof provides: Designation of the offense. The complaint or information shall state the designation of the offense given by the statue, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

The allegation in the information that accused-appellant "willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her" is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellant's constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. (Emphasis & underscoring supplied) As held by this Court in the above-case of Cruz, the allegation in the information that the therein accused-appellant sexually abused the therein private complainant by either raping or committing acts of lasciviousness on her "is not a sufficient averment of the acts constituting the offense as required under Section 8 [of Rule 110], for these are conclusions of law, not facts." Nothing less can be said of the criminal complaints in the cases at bar. They are void for being violative of the accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him. This Court thus takes this occasion to remind public prosecutors of their crucial role in crafting criminal complaints and information. For all efforts may be rendered futile and justice may be denied by a failure to state "the acts or omissions complained of as constituting the offense" as exemplified by the present case. The foregoing disquisition leaves it unnecessary to dwell on accused-appellant's assigned errors or of other errors including failure to allege relationship in the first complaint, and lack of proof of minority in both cases. EN BANC [G.R. No. 134583. July 14, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs. FREDDIE MURILLO, appellant. The Information charges appellant Freddie Murillo as follows: That on or about the 6th day of June, 1997, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab one Paz Abiera with a bladed weapon on her chest, thereby inflicting upon her serious and mortal wounds which directly caused her death. Appellant argues: His plea of guilt was improvident since there was no indication that he fully understood that the qualifying circumstances charged in the information would result to the penalty of death. He only admitted the killing but not the circumstances of treachery and evident premeditation. There could be no evident premeditation since he stabbed Paz only after losing his senses. There could also be no treachery since it cannot be determined with certainty whether or not the wounds inflicted on the victim were made before or after her death. The aggravating circumstance of "outraging or scoffing at his person or corpse" cannot be appreciated in this case since it was not alleged in the Information. 12 The Solicitor General points out that there was treachery since the appellant himself admitted that when his aunt scolded him, he took a knife and suddenly stabbed her in the chest; 13 and that the trial court did not err in finding the presence of evident premeditation. 14 In his Reply, appellant adds that the observations made by the court a quo are based merely on inferences that are unsubstantiated by concrete evidence. 15 After reviewing the entire records of the case, we find that there was an improvident plea of guilt that warrants the remand of the case to the trial court. Rule 116 of the Rules on Criminal Procedure provides: SEC. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf. cDHCAE

The reason for this rule is that courts must necessarily proceed with more care where the possible punishment is in its severest form death for the reason that the execution of such sentence is irrevocable. Experience has shown that innocent persons have at times pleaded guilty in the hope of a lenient treatment, or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. An accused might be admitting his guilt before the court and thus forfeit his life and liberty without having fully understood the meaning, significance and consequences of his plea. The judge therefore has the duty to ensure that the accused does not suffer by reason of mistaken impressions. 16 Requiring the trial court to take further evidence would also aid this Court on appellate review in evaluating the propriety or impropriety of the plea. 17 Under the said rule, three things are required from the trial court when a plea of guilty to a capital offense is entered: (1) the court must conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences thereof; (2) the court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires. 18 The searching inquiry referred to here means more than just informing cursorily the accused that he faces jail term. 19 The inquiry must expound on the events that actually took place during the arraignment, the words spoken and the warnings given, with special attention to the age of the accused, his educational attainment and socio-economic status as well as the manner of his arrest and detention, the provision of counsel in his behalf during the custodial and preliminary investigations, and the opportunity of his defense counsel to confer with him. The trial court must also explain to the accused the essential elements of the crime he is charged with as well as its respective penalties and civil liabilities. 20 The exact length of imprisonment under the law and the certainty that he will serve time at the national penitentiary or a penal colony must be fully explained to the accused. The court must also explain to the accused that once convicted, he could be meted the death penalty and that it is a single and indivisible penalty that will be imposed regardless of any mitigating circumstance that may have attended the commission of the felony. 21 The court must also direct a series of questions to the defense counsel to determine whether he has conferred with the accused and has completely explained to the latter the meaning of a plea of guilt. This formula is mandatory and absent any showing that it has been followed, a searching inquiry cannot be said to have been undertaken. 22 In People vs. Pastor, 23 the Court explained that while there is no definite and concrete rule as to how a trial judge must conduct a "searching inquiry", the following guidelines should nevertheless be observed: 1. Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge's intimidating robes. 2. Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. 3. Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. 4. Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. cICHTD 5. Inquire if the accused knows the crime with which he is charged and fully explain to him the elements of the crime which is the basis of his indictment. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process. 6. All questions posed to the accused should be in a language known and understood by the latter.

7. The trial judge must satisfy himself that the accused in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details. 24

In the case at bar, records do not show that a searching inquiry was ever conducted by the judge when appellant entered his plea of guilty. The Order dated July 14, 1997 simply reads as follows:

PEOPLE VS. RIVERA The right of a party to cross-examine a witness is embodied in Art. III, 14(2) of the Constitution which provides that the accused shall have the right to meet the witnesses face to face and in Rule 115, 1(f) of the Revised Rules of Criminal Procedure which states that, in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against him. 27 The cross-examination of a witness is essential to test his or her credibility, expose falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the accused and thus give substance to the constitutional right of the accused to confront the witnesses against him. 28 The right of the accused to cross-examine a witness is, however, not without limits but is subject to the rules on the admissibility and relevance of evidence. Thus, in People v. Zheng Bai Hui, 29 this Court upheld the ruling of the trial judge disallowing the questions propounded by the accused's counsel on the ability of the arresting officer to distinguish between tawas and shabu without a laboratory examination, the academic degree of his training instructor, and the officer's authorship of books on drug identity and analysis for being irrelevant, improper, and impertinent. In this case, accused-appellant's counsel argued that his questions to Erlanie on the other acts of lasciviousness supposedly committed by accused-appellant against her were for the purpose of testing her credibility. There was, however, no showing on his part how these questions had any bearing on complainant's credibility or on the truth of her claims. One is led to suspect that the purpose of these questions was to confuse complainant into committing mistakes in her answers during cross-examination that accused-appellant's counsel could later use to possibly put complainant's credibility, not to mention her character, in question. HcSaTI Accused-appellant insists that his counsel should have been allowed to ask questions in relation to the sworn statement executed by complainant. He cites Rule 132, 17 of the Revised Rules of Evidence which provides that: When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject matter may be inquired into by the other. Neither can this rule be invoked to justify the questioning of complainant which the trial court did not allow. As the above provision states, this rule applies to parts of "an act, declaration, conversation, writing or record" which is given in evidence.

Indeed, the records show that after Erlanie had finished with her direct examination on November 25, 1997, the trial judge granted the motion made by Atty. Anselmo Mangalindan, accused-appellant's private counsel, to postpone Erlanie Rivera's crossexamination to allow him time to secure copies of the transcript of stenographic notes of Erlanie's testimony and thus enable him to fully question complainant. 30 Erlanie was first cross-examined on December 2, 1997, but several postponements, namely, on January 13, 1998, 31 February 10, 1998, 32 March 12, 1998, 33 March 31, 1998, 34 April 7, 1998, 35 May 12, 1998, 36 May 26, 1998, 37 May 28, 1998, 38 and June 11, 1998, 39 on Erlanie's cross-examination took place because of the failure of Atty. Mangalindan to appear on the said trial dates. Erlanie's cross-examination was continued on July 14, 1998 and July 23, 1998. Her cross-examination by accused-appellant's counsel was thorough and covered various subjects, such as the nature of the relationship between her parents, who were present during the execution of her sworn statement, whether the same had been executed by her voluntarily, the date when she was raped by accused-appellant, the reason for her delay in reporting the rape committed by accused-appellant, her understanding of Tagalog, who were with her in the house at the time of the rape, the details surrounding the rape committed against her, and her age. It is evident that accused-appellant and his counsel were given ample opportunity to conduct the cross-examination of Erlanie Rivera in order to test her truthfulness. aADSIc B. The record shows that because accused-appellant's private counsel was not present when Dr. Barin testified, Atty. Eddie Bansil was appointed by the trial court as accused-appellant's counsel de oficio for that particular hearing. Atty. Bansil

moved for the postponement of the witness' cross-examination, but the trial court denied his request because, on the one hand, accused-appellant was a detention prisoner and Dr. Barin was a very busy person, while, on the other hand, Atty. Bansil had heard the testimony of the said witness. Atty. Bansil then decided not to cross-examine Dr. Barin. 40 Accused-appellant now contends that the trial judge denied the motion of Atty. Bansil for postponement because he was biased against him. Accused-appellant claims that the counsel de oficio was not familiar with the facts of his case and was thus in no position to cross-examine Dr. Barin. While the Constitution recognizes the accused's right to competent and independent counsel of his own choice, his option to secure the services of a private counsel is not absolute. For considering the State's and the offended party's right to speedy and adequate justice, the court may restrict the accused's option to retain a private counsel if the accused insists on an attorney he cannot afford, or if the chosen counsel is not a member of the bar, or if the attorney declines to represent the accused for a valid reason. 41 The trial court appointed Atty. Bansil a counsel de oficio to represent accused-appellant on October 6, 1998 because his regular counsel, Atty. Anselmo Mangalindan, was absent without any explanation. Atty. Mangalindan had previously been granted several postponements. As this Court ruled in another case: . . . Courts are not required to wait indefinitely the pleasure and convenience of the accused as they are also mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was adequately represented by counsels who were not shown to be negligent, incompetent or otherwise unable to represent him. 42 Atty. Bansil was present and heard the testimony of Dr. Barin, the prosecution witness, on that day. Dr. Barin's testimony on direct examination was simple, containing primarily a discussion of her findings on the hymenal laceration sustained by complainant. Her testimony did not require considerable study and extraordinary preparation on the part of defense counsel for the purpose of cross-examination. It seems Atty. Bansil no longer found it necessary to cross-examine Dr. Barin. Moreover, beyond stating that Dr. Barin was a vital witness, accused-appellant has not indicated what questions his counsel wanted to ask from Dr. Barin. It may well be that these questions do not exist at all and that the importance given by accusedappellant to counsel de oficio's failure to cross-examine the witness is exaggerated. Indeed, a medical examination of the victim, together with the medical certificate, is merely corroborative and is not an indispensable element of rape. 43 The primordial issue in this case remains to be whether the complainant's testimony, not Dr. Barin's, established beyond reasonable doubt the crime of rape. TcHCDE

[A.M. No. 01-4-03-SC. June 29, 2001.]

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.

In Estes vs. Texas, the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark, identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated: "'Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which might affect their testimony. Also,

telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. 'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.' "Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom. "Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. This Court, in the instance 19 already mentioned, citing Estes vs. Texas, 20 the United States Supreme Court holding the television coverage of judicial proceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices: STaCIA "1. The potential impact of television . . . is perhaps of the greatest significance. . . . From the moment the trial judge announces that a case will be televised it becomes a cause clbre. The whole community, . . . becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. . . . "2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. . . .. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth. "3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. . . "4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental if not physical harassment, resembling a police line-up or the third degree. The inevitable close-up of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him sometimes the difference between life and death dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice."

WRIT OF HABEAS CORPUS AND WRIT OF AMPARO FIRST DIVISION [G.R. No. 139789. May 12, 2000.] ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents.

[G.R. No. 139808. May 12, 2000.] POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioner, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. LLjur A writ of habeas corpus extends to all cases of illegal confinement or detention, 1 or by which the rightful custody of a person is withheld from the one entitled thereto. 2 "Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf." 3 It is a high prerogative, common-law writ, of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause. 4 It is issued when one is deprived of liberty or is wrongfully prevented from exercising legal custody over another person. 5 The petition of Erlinda K. Ilusorio 6 is to reverse the decision 7 of the Court of Appeals and its resolution 8 dismissing the application for habeas corpus to have the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as the wife.

On the other hand, the petition of Potenciano Ilusorio 9 is to annul that portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation rights. Hence, the two petitions, which were consolidated and are herein jointly decided. As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or detention, 13 or by which the rightful custody of a person is withheld from the one entitled thereto. It is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has later become arbitrary. 14 It is devised as a speedy and effectual remedy to relieve persons from unlawful restraint, as the best and only sufficient defense of personal freedom. 15 The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal. 16 To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. 17 The illegal restraint of liberty must be actual and effective, not merely nominal or moral. 18 The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but on the capacity of the individual to discern his actions. LibLex

EN BANC [G.R. No. 158802. November 17, 2004.]

IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (detained at the New Bilibid Prisons, Muntinlupa City)

REYNALDO DE VILLA, petitioner, JUNE DE VILLA, petitioner-relator, vs. THE DIRECTOR, NEW BILIBID PRISONS, respondent. This is a petition for the issuance of a writ of habeas corpus under Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined by his son, petitioner-relator June de Villa, seeks a two-fold relief: First, that respondent Director of Prisons justify the basis for the imprisonment of petitioner Reynaldo de Villa; and second, that petitioner be granted a new trial. 1 These reliefs are sought on the basis of purportedly exculpatory evidence, gathered after performing deoxyribonucleic acid (DNA) testing on samples allegedly collected from the petitioner and a child born to the victim of the rape. Thus, in the case of Chavez v. Court of Appeals, 34 the writ of habeas corpus was held to be available where an accused was deprived of the constitutional right against self-incrimination. A defect so pronounced as the denial of an accused's constitutional rights results in the absence or loss of jurisdiction, and therefore invalidates the trial and the consequent conviction of the accused. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 Later, in Gumabon v. Director of the Bureau of Prisons, 36 this Court ruled that, once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. 37 Although in Feria v. Court of Appeals 38 this Court was inclined to allow the presentation of new evidence in a petition for the issuance of a writ of habeas corpus, this was an exceptional situation. In that case, we laid down the general rule, which states that the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. Where the return is not subject to exception, that is, where it sets forth a process which, on its face, shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process. 39 In the recent case of Calvan v. Court of Appeals, 40 we summarized the scope of review allowable in a petition for the issuance of the writ of habeas corpus. We ruled that the writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked by the attendance of a special circumstance that requires immediate action. In such situations, the inquiry on a writ of habeas corpus would be addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which a person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention. 41 It is the nullity of an assailed judgment of conviction which makes it susceptible to collateral attack through the filing of a petition for the issuance of the writ of habeas corpus. cIACaT First, the denial of a constitutional right has not been alleged by petitioner. As such, this Court is hard-pressed to find legal basis on which to anchor the grant of a writ of habeas corpus. Much as this Court sympathizes with petitioner's plea, a careful scrutiny of the records does not reveal any constitutional right of which the petitioner was unduly deprived. We are aware that other jurisdictions have seen fit to grant the writ of habeas corpus in order to test claims that a defendant was denied effective aid of counsel. 42 In this instance, we note that the record is replete with errors committed by counsel, and it can be alleged that the petitioner was, at trial, denied the effective aid of counsel. The United States Supreme Court requires a defendant alleging incompetent counsel to show that the attorney's performance was deficient under a reasonable standard, and additionally to show that the outcome of the trial would have been different with competent counsel. 43 The purpose of the right to effective assistance of counsel is to ensure that the defendant receives a fair trial. 44 The U.S. Supreme Court asserts that in judging any claim of ineffective assistance of counsel, one must examine whether counsel's conduct undermined the proper functioning of the adversarial process to such an extent that the trial did not produce a fair and just result. 45 The proper measure of attorney performance is "reasonable" under the prevailing professional norms, and the defendant must show that the representation received fell below the objective standard of reasonableness. 46 For the petition to succeed, the strong presumption that the counsel's conduct falls within the wide range or reasonable professional assistance must be overcome. 47 In the case at bar, it appears that in the middle of the appeal, the petitioner's counsel of record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his appearance as counsel, giving the sole explanation that he was "leaving for the United States for an indefinite period of time by virtue of a petition filed in his favor." 48 In the face of this abandonment, petitioner made an impassioned plea that his lawyer be prevented from this withdrawal in a handwritten "Urgent Motion for

Reconsideration and Opposition of Counsel's Withdrawal of Appearance with Leave of Court" received by this Court on September 14, 1999. 49 Petitioner alleged that his counsel's withdrawal is an "untimely and heartbreaking event", considering that he had placed "all [his] trust and confidence on [his counsel's] unquestionable integrity and dignity." 50 It must be stressed that the issue of Leahlyn Mendoza's paternity is not central to the issue of petitioner's guilt or innocence. The rape of the victim Aileen Mendoza is an entirely different question, separate and distinct from the question of the father of her child. Recently, in the case of People v. Alberio, 51 we ruled that the fact or not of the victim's pregnancy and resultant childbirth are irrelevant in determining whether or not she was raped. Pregnancy is not an essential element of the crime of rape. Whether the child which the victim bore was fathered by the purported rapist, or by some unknown individual, is of no moment in determining an individual's guilt. THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, Petitioners,

- versus -

RAYMOND MANALO and REYNALDO MANALO, Respondents The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let us hearken to its beginning. The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted from a twoday National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 16-17, 2007. The Summit was envisioned to provide a broad and fact -based perspective on the issue of extrajudicial killings and enforced disappearances,i[71] hence representatives from all sides of the political and social spectrum, as well as all the stakeholders in the justice systemii[72] participated in mapping out ways to resolve the crisis. On October 24, 2007, the Court promulgated the Amparo Rule in light of the prevalence of extralegal killing and enforced disappearances.iii[73] It was an exercise for the first time of the Courts expanded power to promulgate rules to protect our peoples constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.iv[74] As the Amparo Rule was intended to address the intractable problem of extralegal killings and enforced disappearances, its coverage, in its present form, is confined to these two instances or to threats thereof. Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.v[75] On the other hand, enforced disappearances are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. vi[76] The writ of amparo originated in Mexico. Amparo literally means protection in Spanish.vii[77] In 1837, de Tocquevilles Democracy in America became available in Mexico and stirred great interest. Its description of the practice of judicial review in the U.S. appealed to many Mexican jurists. viii[78] constitutional provision for his native state, Yucatan,
ix[79]

One of them, Manuel Crescencio Rejn, drafted a

which granted judges the power to protect all persons in the enjoyment

of their constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz:

The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation, making no general declaration concerning the statute or regulation that motivated the violation.x[80]

Since then, the protection has been an important part of Mexican constitutionalism. xi[81] If, after hearing, the judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the officials superiors, to cease the violation and to take the necessary measures to restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation.xii[82] The writ of amparo then spread throughout the Western Hemisphere, gradually evolving into various forms, in response to the particular needs of each country.xiii[83] It became, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexicos self-attributed task of conveying to the worlds legal heritage that institution which, as a shield of human dignity, her own painful history conceived.xiv[84] What began as a protection against acts or omissions of public authorities in violation of constitutional rights later evolved for several purposes: (1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants rights derived from the agrarian reform process.xv[85] In Latin American countries, except Cuba, the writ of amparo has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an allencompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights.xvi[86] Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of amparo only to some constitutional guarantees or fundamental rights.xvii[87] In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of amparo, several of the above amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power to determine whether or not there has been a grave abu se of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Clause acco rds a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution.xviii[88] The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.xix[89] While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102,xx[90] these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of amparo through summary proceedings and the availability of appropriate interim and

permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that

requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. xxi[91] The writ of amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and enforced disappearances. In the case at bar, respondents initially filed an action for Prohibition, Injunction, and Temporary Restraining Order
xxii[92]

to stop petitioners and/or their officers and agents from depriving the respondents of their right to liberty and other

basic rights on August 23, 2007,xxiii[93] prior to the promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have their petition treated as an amparo petition as it would be more effective and suitable to the circumstances of the Manalo brothers enforced disappearance. The Court granted their motion. With this backdrop, we now come to the arguments of the petitioner. Petitioners first argument in disputing the Decision of the Court of Appeals states, viz: The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving affidavit/testimony of herein respondent Raymond Manalo.xxiv[94]

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners cause of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof required. Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz: Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz: Sec. 17. Burden of Proof and Standard of Diligence Required . The parties shall establish their claims by substantial evidence.

xxx

xxx

xxx

Sec. 18. Judgment. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.xxv[95] After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless candid details of respondents harrowing experience and tenacious will to escape, captured through his different senses and etched i n his memory. Manuel. A few examples are the following: Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si
xxvi[96]

(N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o

ungol ni Manuel.xxvii[97] May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.xxviii[98] Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga kadena.xxix[99] Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar.xxx[100] We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalos affidavit and testimony, viz: the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men who barged into his house through the rear door were military men based on their attire of fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries. We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either members or sympathizers of the NPA, considering that the abductors were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners.

The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could delve only into the participation of military personnel, but even then the Provost Marshall should have refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated Gen. Palparans participation in the abduction was also established. At the very least, he was aware of the petitioners captivity at the hands of men in uniform assigned to his command. In fact, he or any other officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he wanted them and their parents to do or not to be doing. Gen. Palparans direct and personal role in the abduction might not have been shown but his knowledge of the dire situation of the petitioners during their long captivity at the hands of military personnel under his command bespoke of his indubitable command policy that unavoidably encouraged and not merely tolerated the abduction of civilians without due process of law and without probable cause. In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention. Hilarios involvement could not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive the van in which the petitioners were boarded and ferried following the abduction, did not testify. (See the decision of the habeas proceedings at rollo, p. 52) However, in this case, Raymond attested that Hilario drove the white L-300 van in which the petitioners were brought away from their houses on February 14, 2006. Raymond also attested that Hilario participated in subsequent incidents during the captivity of the petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the Revo, to an unfinished house inside the compound of Kapitan where they were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to the house of the petitioners parents, where only Raymond was presented to the parents to relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario warned the parents that they would not again see their sons should they join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion when Gen. Palparan required Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a direct hand in their torture. It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the petitioners was established. The participation of other military personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly established. xxx xxx xxx

As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also do, for, indeed, the evidence of their participation is overwhelming. xxxi[101] We reject the claim of petitioners that respondent Raymond Manalos statements were not corroborated by other independent and credible pieces of evidence.xxxii[102] Raymonds affidavit and testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on respondents,xxxiii[103] also corroborate respondents accounts of the torture they endured while in detention. Respondent Raymond Manalos familiarity with the facilities in Fort Magsaysay such as the DTU, as shown in his testimony and confirmed by Lt. Col. Jimenez to be the Division Training Unit, xxxiv[104] firms up respondents story that they were detained for some time in said military facility.

In Ortiz v. Guatemala,xxxv[105] a case decided by the Inter-American Commission on Human Rights, the Commission considered similar evidence, among others, in finding that complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in earl y November 1989. The Commissions findings of fact were mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.xxxvi[106] These statements were supported by her recognition of portions of the route they took when she was being driven out of the military installation where she was detained.xxxvii[107] She was also examined by a medical doctor whose findings showed that the 111 circular second degree burns on her back and abrasions on her cheek coincided with her account of cigarette burning and torture she suffered while in detention.xxxviii[108] With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account will depend on their credibility and candidness in their written and/or oral statements. Their statements can be corroborated by other evidence such as physical evidence left by the torture they suffered or landmarks they can identify in the places where they were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise. We now come to the right of the respondents to the privilege of the writ of amparo. There is no quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as they have escaped from captivity and surfaced. But while respondents admit that they are no longer in detention and are physically free, they assert that they are not free in every sense of the wordxxxix[109] as their movements continue to be restricted for fear that people they have named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and have not been held accountable in any way. These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position to threaten respondents rights to life, liberty and security.xl[110] (emphasis supplied) Respondents claim that they are under threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person.xli[111] Elaborating on the right to security, in general, respondents point out that this right is often associated with liberty; it is also seen as an expansion of rights based on the prohibition against torture and cruel and unusual punishment. Conceding that there is no right to security expressly mentioned in Article III of the 1987 Constitution, they submit that their rights to be kept free from torture and from incommunicado detention and solitary detention placesxlii[112] fall under the general coverage of the right to security of person under the writ of Amparo. They submit that the Court ought to give an expansive recognition of the right to security of person in view of the State Policy under Article II of the 1987 Constitution which enunciates that, The State values the dignity of every human person and guarantees full respect for human rights. Finally, to justify a liberal interpretation of the right to security of person, respondents cite the teaching in Moncupa v. Enrilexliii[113] that the right to liberty may be made more meaningful only if there is no undue restraint by the State on the exercise of that libertyxliv[114] such as a requirement to report under unreasonable restrictions that amounted to a deprivation of liberty xlv[115] or being put under monitoring and surveillance.xlvi[116] In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of their right to security.

Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides, viz: 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

At the core of this guarantee is the immunity of ones person, including the extensions of his/her person houses, papers, and effects against government intrusion. Section 2 not only limits the states power over a persons home and possessions, but more importantly, protects the privacy and sanctity of the person himself.xlvii[117] The purpose of this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: xlviii[118] The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person and property and unlawful invasion of the security of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence. (Taada and Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is closer to a mans soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable can only be for the best causes and reasons.xlix[119] (emphases supplied)

While the right to life under Article III, Section 1l[120] guarantees essentially the right to be aliveli[121] - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property pervade s the whole history of man. It touches every aspect of mans existence.lii[122] In a broad sense, the right to security of person emanates in a persons legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful de sires of the individual.liii[123] A closer look at the right to security of person would yield various permutations of the exercise of this right. First, the right to security of person is freedom from fear. In its whereas clauses, the Universal Declaration of Human Rights (UDHR) enunciates that a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. ( emphasis supplied) Some scholars postulate that freedom from fear is not only an aspirational principle, but essentially an individual international human right.liv[124] It is the right to security of person as the word security itself means freedom from fear. lv[125] Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.lvi[126] (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) also provides for the right to security of person, viz: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR. In the context of Section 1 of the Amparo Rule, freedom from fear is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the right to security is actually the freedom from threat. Viewed in this light, the threatened with violation Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.lvii[127] Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, ones body cannot be searched or invaded without a se arch warrant.lviii[128] Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person. lix[129] Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes bodily and psychological invasion, viz: (2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall be used against him (any person under investigation for the commission of an offense). Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the sense of freedom from threat as afore -discussed.

Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for the commission of an offense. Victims of enforced disappearances who are not even under such investigation should all the more be protected from these degradations. An overture to an interpretation of the right to security of person as a right against torture was made by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.lx[130] In this case, the claimant, who was lawfully detained, alleged that the state authorities had physically abused him in prison, thereby violating his right to security of person. Article 5(1) of the European Convention on Human Rights provides, viz: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ... (emphases supplied) Article 3, on the other hand, provides that (n)o one shall be subjected to torture or to inhuman or degrading treatment or punishment. Although the application failed on the facts as the alleged ill -treatment was found baseless, the ECHR relied heavily on the concept of security in holding, viz: ...the applicant did not bring his allegations to the attention of domestic authorities at the time when they could reasonably have been expected to take measures in order to ensure his security and to investigate the circumstances in question.

xxx

xxx

xxx

... the authorities failed to ensure his security in custody or to comply with the procedural obligation under Art.3 to conduct an effective investigation into his allegations. lxi[131] (emphasis supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that the protection of the bodily integrity of women may also be related to the right to security and liberty, viz: gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under specific human rights conventions is discrimination within the meaning of article 1 of the Convention (on the Elimination of All Forms of Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of person.lxii[132]

Third, the right to security of person is a guarantee of protection of ones rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State guarantees full respect for human rights under Article II, Section 11 of the 1987 Constitution. lxiii[133] As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal

killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,lxiv[134] viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. lxv[135]

This third sense of the right to security of person as a guarantee of government protection has been interpreted by the United Nations Human Rights Committeelxvi[136] in not a few cases involving Article 9lxvii[137] of the ICCPR. While the right to security of person appears in conjunction with the right to liberty under Article 9, the Committee has ruled that the right to security of person can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,lxviii[138] a case involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz: The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux prparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.lxix[139] (emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia,lxx[140] which involved a political activist and prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements following his release from detention. In a catena of cases, the ruling of the Committee was of a similar import: Bahamonde v. Equatorial Guinea,lxxi[141] involving discrimination, intimidation and persecution of opponents of the ruling party in that state; Tshishimbi v. Zaire,lxxii[142] involving the abduction of the complainants husband who was a supporter of democratic reform in Z aire; Dias v. Angola,lxxiii[143] involving the murder of the complainants partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,lxxiv[144] involving an assassination attempt on the chairman of an opposition alliance. Similarly, the European Court of Human Rights (ECHR) has interpreted the right to security not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty.lxxv[145] The ECHR interpreted the right to security of person under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey.lxxvi[146] In this case, the claimants son had been arrested by state authorities and had not been seen since. The familys requests for information and investigation regarding his

whereabouts proved futile. The claimant suggested that this was a violation of her sons right to security of person. The E CHR ruled, viz: ... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.lxxvii[147] (emphasis supplied)

Applying the foregoing concept of the right to security of person to the case at bar, we now determine whether there is a continuing violation of respondents right to security. First, the violation of the right to security as freedom from threat to respondents life, liberty and security. While respondents were detained, they were threatened that if they escaped, their families, including them, would be killed. In Raymonds narration, he was tortured and poured with gasoline after he was caught the f irst time he attempted to escape from Fort Magsaysay. A call from a certain Mam, who wanted to see him before he was killed, spared him. This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It should be stressed that they are now free from captivity not because they were released by virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay, Bataan, respondents captors even told them that they were still deciding whether they should be executed. Respondent Raymond Manalo attested in his affidavit, viz: Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.lxxviii[148]

The possibility of respondents being executed stared them in the eye while they were in detention . With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and implicated specific officers in the military not only in their own abduction and torture, but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel Merino, among others. Understandably, since their escape, respondents have been under concealment and protection by private citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they are forced to limit their movements or activities.lxxix[149] Precisely because respondents are being shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the circumstances of respondents abduction, detention, torture and escape reasonably sup port a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo.

Next, the violation of the right to security as protection by the government.

Apart from the failure of military

elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents abduction as revealed by the testimony and investigation report of petitioners own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7 th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court.lxxx[150] Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents. lxxxi[151] To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of amparo. Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents right to security as a guarantee of protection by the government. In sum, we conclude that respondents right to security as freedom from threat is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military.

SPEEDY DISPOSITION OF CASES [G.R. Nos. 146368-69. October 18, 2004.]

MADELEINE MENDOZA-ONG, petitioner, vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. Neither could the delay be said to have been prejudicial to her considering that she herself is guilty of delay. 12 The Court has held that if the long delay in the termination of the preliminary investigation was not solely the prosecution's fault, but was also due to incidents attributable to the accused and his counsel, the right of the accused to speedy disposition of cases is not violated. 13 Petitioner cannot now seek the protection of the law to benefit from what she now considers the adverse effects of her own conduct in this case. ACTIcS Petitioner's reliance on the doctrines in Tatad v. Sandiganbayan, 14 Duterte v. Sandiganbayan, 15 and Angchangco, Jr. v. Ombudsman 16 is misplaced. In Tatad v. Sandiganbayan, the cases against petitioner remained dormant for almost three years. In ruling that the long delay violated not only Tatad's constitutional right to due process but also his right to speedy disposition of the cases against him, the Court considered three factors. First, political motivation played a vital role in activating and propelling the prosecutorial process. Second, there was a blatant departure from established procedures prescribed by law for the conduct of a preliminary investigation. And third, the long delay in resolving the preliminary investigation could not be justified on the basis of the records. 17 Worth noting, in Duterte v. Sandiganbayan, petitioners were denied the right to a preliminary investigation altogether. They were not served copies of the complaint-affidavits and were not given the chance to file counter-affidavits. The Graft Investigator merely required them to comment on a civil complaint against them and on a Special Audit Report of the Commission on Audit, both of which were not equivalent to the complaint-affidavits required by the applicable administrative rules. In fact, the petitioners were unaware and were never informed that a preliminary investigation was being conducted against them. The recommendations in the COA Special Audit Report were already accepted even before the report came out, and the civil complaint had already long been dismissed before the Graft Investigator required petitioner's comment on it. Additionally, in Duterte, although the petitioners had filed the manifestation in lieu of the required comment on February 18, 1992, it was only on February 22, 1996, or four years later, that they received the resolution recommending the filing of informations against them. Then, also, informations were filed against petitioners in that case even in the absence of sufficient ground to hold them liable for the crime charged. cHDAIS In Angchangco, Jr. v. Ombudsman, the delay lasted for six years despite the fact that Angchangco, Jr., had filed several omnibus motions for early resolution. Angchangco, Jr., even filed a motion to dismiss. Sadly, however, the Office of the Ombudsman failed to act on said motion. 18 Unlike in the Tatad, Duterte, and Angchangco, Jr., cases where the delays were manifestly oppressive, the facts of this case do not evince vexatious, capricious and oppressive delay in the conduct of the preliminary investigation. There appears, therefore, no persuasive much less compelling reason to grant in this case the same radical relief granted in those three cases that petitioner cited. 19

[G.R. No. 108595. May 18, 1999.]

ELPIDIO C. CERVANTES, petitioner, vs. THE SANDIGANBAYAN, FIRST DIVISION, THE SPECIAL PROSECUTOR, and PEDRO ALMENDRAS, respondents. We shall first resolve the second issue. We find petitioner's contention meritorious. He was deprived of his right to a speedy disposition of the case, a right guaranteed by the Constitution. 12 It took the Special Prosecutor (succeeding the Tanodbayan) six (6) years from the filing of the initiatory complaint before he decided to file an information for the offense with the Sandiganbayan. The letter complaint was filed with the Tanodbayan on March 6, 1986. The affidavit of the petitioner was filed therein on October 16, 1986. The Special Prosecutor resolved the case on May 18, 1992. In their comment to the petition at bar, 13 the Sandiganbayan and the Special Prosecutor try to justify the inordinate delay in the resolution of the complaint by stating that "no political motivation appears to have tainted the prosecution of the case" in apparent reference to the case of Tatad vs.

Sandiganbayan, (footnote: 159 SCRA 70, 81-82.) where the Court ruled that the "long delay (three years) in the termination of the preliminary investigation by the Tanodbayan" was violative of the Constitutional right of "speedy disposition" of cases because "political motivations played a vital role in activating and propelling the prosecutorial process in this case." prLL The Special Prosecutor also cited Alvizo vs. Sandiganbayan (footnote 220 SCRA 55, 64) alleging that, as in Alvizo, the petitioner herein was "insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the disposition of the matter." We cannot accept the Special Prosecutors ratiocination. It is the duty of the prosecutor to speedily resolve the complaint, as mandated by the Constitution, regardless of whether the petitioner did not object to the delay or that the delay was with his acquiescence provided that it was not due to causes directly attributable to him. Consequently, we rule that the Sandiganbayan gravely abused its discretion in not quashing the information for violation of petitioners Constitutional right to the speedy disposition of the case in the level of the Special Prosecutor, Office of the Ombudsman. 14

RIGHT AGAINST SELF INCRIMINATION FIRST DIVISION [G.R. No. 85215. July 7, 1989.]

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT AGAINST SELFINCRIMINATION; RIGHT CONSTRUED. The right against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. The right is NOT to "be compelled to be a witness against himself." It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. 2. ID.; ID.; ID.; ID.; TIME TO ASSERT RIGHT. The right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty.

3. ID.; ID.; ID.; ID.; NOT A SELF-EXECUTING RIGHT. The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 4. ID.; ID.; ID.; OTHER RIGHTS OF THE ACCUSED. The accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be crossexamined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 5. ID.; ID.; ID.; RIGHT TO BE EXEMPT FROM BEING A WITNESS AGAINST HIMSELF, CONSTRUED. The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 6. ID.; ID.; ID.; RIGHTS OF THE ACCUSED BEFORE AND AFTER THE CASE IS FILED IN THE COURT. A person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in that matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify to his own behalf, subject to crossexamination by the persecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some time other than that for which he is prosecuted. 7. ID.; ID.; ID.; RIGHTS DURING CUSTODIAL INVESTIGATION DOES NOT ENCOMPASS STATEMENTS MADE DURING AN ADMINISTRATIVE INQUIRY; CASE AT BAR. Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos. EN BANC [G.R. No. L-29169. August 19, 1968.]

ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PRIVILEGE AGAINST SELF- INCRIMINATION; BASIS THEREOF. The privilege against self-incrimination is based on the constitutional injunction that: "No person shall be compelled to be a witness against himself," fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled to be exempt from being a witness against himself. While the admissions of confessions of the prisoner, when freely and voluntarily made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the question put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions which is so painfully evident in many of the earlier state trials, made the system so odious as to give rise to a demand for its total abolition. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonist that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment. 2. ID.; ID.; ID.; ORIGIN, NATURE AND PURPOSE THEREOF. An old Philippine case speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant of valuable and substantive right; it is fundamental to our scheme of justice. The Supreme Court of the United States thru Mr. Justice Harlan warned that "the constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and the foresighted." It is in this context that the constitutional guarantee may not be treated with unconcern. Taada and Fernando take note of U.S. vs. Navarro, which reaffirms the rule that the constitutional prescription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. 3. ID.; ID.; ID.; CONCEPT OF COMPULSION. Compulsion as it is understood does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 4. ID.; ID.; ID.; ACCUSED DISTINGUISHED FROM ORDINARY WITNESS. An accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." This rule may apply even to a co-defendant in a joint trial. 5. ID.; ID.; ID.; PRECEPT. The guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but the capability of abuse." 6. ID.; ID.; ID.; WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMINATION; MEANING; REQUIREMENTS OF WAIVER. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver follows only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. 7. ID.; ID.; ID.; VIOLATION OF CONSTITUTIONAL RIGHT TO BE REPRESENTED BY COUNSEL IS JURISDICTIONAL BAR. A court's jurisdiction at the beginning of trial may be lost in the course of the proceedings due to failure to complete the court as the Sixth Amendment requires by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guarantee, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.

8. ID.; ID.; ID.; HABEAS CORPUS AS REMEDY WHERE THERE IS BREACH. Habeas Corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. The writ of habeas corpus as an extraordinary remedy must be liberally given effect so as to protect well a person whose liberty is at stake. CASTRO, J., Separate opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST SELF-INCRIMINATION. In 1901, early in the history of constitutional government in this country, this Court reversed the conviction of an accused who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The case was that of United States vs. Junio and even in the case of Cabal vs. Kapunan it was assumed as a familiar learning that the accused in a criminal case cannot be required to give testimony and that if his testimony is needed at all against his co-accused, he must first be discharged. If Cabal, the respondent in an administrative case, was required by an investigating committee to testify, it was because it was thought that proceedings for forfeiture of illegally acquired property under Republic Act 1379 were civil and not criminal in nature. 2. ID.; ID.; ID.; TAKING THE WITNESS STAND IS WITHIN THE PRIVILEGE. It is not disputed that the accused in a criminal case may refuse not only to answer incriminatory questions but also to take the witness stand. 3. ID.; ID.; ID.; AIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION. The constitutional provision that "No person shall be compelled to be a witness against himself" may, on occasion, save a guilty man from his just desserts, but it is aimed against a more far-reaching evil - the recurrence of the inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. The Government must thus establish guilt by evidence independently and freely secured; it cannot by coercion prove a charge against an accused out of his own mouth. 4. ID.; ID.; ID.; MOTIVES IRRELEVANT IN THE PRESERVATION OF LIBERTIES. The motives of men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our constitution. The battle over the Bill of Rights is a never ending one. 5. ID.; HABEAS CORPUS; ITS OFFICE. The fact that the judgment of conviction became final with the dismissal of the appeal to the Court of Appeals for failure of the petitioner's former counsel to file a brief is of no moment. That judgment is void, and it is precisely the abiding concern of the writ of habeas corpus to provide redress for unconstitutional and wrongful convictions. Vindication of due process is precisely the historic office of the Great Writ.

EN BANC [G.R. No. 16444. September 8, 1920.]

EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS, sheriff of the city of Manila, respondent. 1. CONSTITUTIONAL LAW; PHILIPPINE BILL OF RIGHTS; RIGHT OF ACCUSED PERSON; GENERAL PRINCIPLES. The object of having criminal laws is to purge the community of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions are then provided, not to protect the guilty but to protect the innocent. No rule is intended to be so rigid as to embarrass the administration of justice in its endeavor to ascertain the truth.

2. ID.; ID.; ID.; ID.; With a losse extension of constitutional guaranties because of a misconceived motion of the rights of accused persons, this court is not in accord. 3. ID.; ID.; ID.; SELF-INCRIMINATION; HISTORY OF THE GUARANTY. The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early days is a revolt against the thumbscrew and the rack. A legal shield was raised against odious inquisitional methods of interrogating an accused person by which to extort unwilling confessions with the ever present temptation to commit the crime of perjury. The principle was taken into the American Constitutions, and from the United States was brought to the Philippine Islands, in exactly as States was brought to the Philippine Islands, in exactly as wide but no wider a scope as it existed in old English days. 4. ID.; ID.; ID.; ID.; POLICY OF THE LAW. Even superior to the complete immunity of a person to be let alone as the interest which the public has in the orderly administration of justice. Between a sacrifice of the ascertainment of truth to personal considerations, between a disregard of the public welfare for refined notions of delicacy, law and justice cannot hesitate. 5. ID.; ID.; ID.; ID.; RULES. The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. 6. ID.; ID.; ID.; ID.; ID.; Torture force shall be avoided.

7. ID.; ID.; ID.; ID.; BODILY EXHIBITION. On a proper showing and under an order of the trial court, an ocular inspection of the body of the accused is permissible. 8. ID.; ID.; ID.; ID.; ID. Upon petition of the assistant fiscal for the city of Manila, the trial court ordered the defendant, a woman charged with the crime of adultery, to submit her body to the examination of one or two competent doctors to determine whether she was pregnant or not. Held: That while this order of the trial court is phrased in absolute terms, it should, nevertheless, be understood as subject to the limitations herein mentioned, and thus as not in violation of that portion of the Philippine Bill of rights and that portion of the Philippine Code of Criminal Procedure which find their origin in the Constitution of the United States and practically all State Constitutions, and in the common law rules of evidence, relating to selfincrimination. 9. ID.; ID.; ID.; ID.; ID. The rules announced are believed to be stare decisis in this jurisdiction. (Holt vs. U. S. [1910], 218 U. S., 585; U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735.) Even if not so, the Supreme Court of the Philippine Islands would rather desire its decision to rest on the reason of the case than on blind adherence to tradition.

FIRST DIVISION [G.R. No. 32025. September 23, 1929.]

FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal of Isabela, respondents. 1. CRIMINAL PROCEDURE; COMPULSORY APPEARANCE OF WITNESSES AT FISCAL'S INVESTIGATIONS; REFUSAL OF WITNESS TO WRITE FROM DICTATION. The fiscal under section 1687 of the Administrative Code, and the competent judge, at the request of the fiscal, may compel witnesses to be present at the investigation of any crime or misdemeanor. But this power must be exercised without prejudice to the constitutional rights of persons cited to appear. The petitioner, in refusing to write down what the fiscal had to dictate to him for the purpose of verifying his handwriting and determining whether he had written certain documents alleged to have been falsified, seeks protection his constitutional privilege. 2. ID.; RIGHTS OF DEFENDANT; TEXT OF CONSTITUTIONAL PROVISION. The right was promulgated, both in the Organic Law of the Philippines of July 1, 1902 and in paragraph 3, section 3 of the Jones Law, which provides (in Spanish); "Ni se le obligara (defendant) a declarar en contra suya en ningun proceso criminal," and recognized in our Criminal

Procedure (General Orders, No. 58) in section 15 (No. 4) and section 56. The English text of the Jones Law reads as follows; "Nor shall he be compelled in any criminal case to be a witness against himself," thus, the prohibition is not restricted to not compelling him to testify, but extends to not compelling him to be a witness. 3. ID.; ID.; SCOPE OF CONSTITUTIONAL PRIVILEGE. "The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself is so sacred, and the pressure toward their relaxation so great when the suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to giving of oral testimony, but embraced as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret." (28 R. C. L., par. 20, page 434, and notes.) 4. ID.; ID.; CASES INAPPLICABLE. There have been cases where it was lawful to compel the accuse to write in open court while he was under cross-examination (Bradford vs. People, 43 Pacific Reporter, 1013), and to make him write his name with his consent during the trial of his case (Sprouse vs. Com., 81 Va., 374, 378); but in the first case, the defendant, in testifying as witness in his own behalf waived his constitutional privilege not to be compelled to act as witness; and in the second, he also waived said privilege because he acted voluntarily. 5. ID.; ID.; PREPARATION AND CREATION OF EVIDENCE BY TESTIMONIAL ACT. This constitutional prohibition embraces the compulsory preparation and creation by a witness of self-incriminatory evidence by means of a testimonial act. "For though the disclosure thus sought" (the production of documents and chattels) "be not oral in form, and thought the documents or chattels be already in existence and not desired to be first written and created by a testimonial act or utterance of the person in response to the process, still no line can be drawn short of any process which treats him as a witness; because in virtue of it he would be at any time liable to make oath to the identity or authenticity or origin of the articles produced." (4 Wigmore on Evidence, 864, 865, latest edition.) IN the case before us, writing is something more than moving the body, or hand, or fingers; writing is not purely mechanical act; it requires the application of intelligence and attention; writing means for the petitioner here to furnish, through a testimonial act, evidence against himself. 6. ID.; ID.; PROSECUTION OF CRIMES; PRIVILEGE, REASON FOR EXISTENCE OF. It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's handwriting is not granted, the crime would go unpunished. The petitioner is a municipal treasurer, and it should not be difficult for the fiscal to obtain a genuine specimen of his handwriting by some other means. But even supposing that it is impossible to secure such specimen without resorting to the means herein complained of by the petitioner, that is no reason for trampling upon a personal right guaranteed by the constitution. It might be true that in some cases criminals may succeed in evading the hand of justice, but such cases are accidental and do not constitute the raison d'etre of the privilege. This constitutional privilege exists for the protection of innocent persons. 7. ID.; ID.; DISTINCTION BETWEEN VILLAFLOR-SUMMERS CASE AND CASE AT BAR. The difference between this case and that of Villaflor vs. Summers (41. Phil., 620, is that in the latter the object was to have the petitioner's body examined by physicians, without being compelled to perform a positive act, but only an omission, that is, not to prevent the examination, which could be, and was, interpreted by this court as being no compulsion of the petitioner to furnish evidence by means of a testimonial act; all of which is entirely different from the case at bar, where it is sought to make the petitioner perform a positive testimonial act, silent, indeed, but effective, namely, to write and give a sample of his handwriting for comparison.

EXCESSIVE FINES AND PENALTIES ATKINS v. VIRGINIA CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 00-8452. Argued February 20, 2002-Decided June 20, 2002 Petitioner Atkins was convicted of capital murder and related crimes by a Virginia jury and sentenced to death. Affirming, the Virginia Supreme Court relied on Penry v. Lynaugh, 492 U. S. 302, in rejecting Atkins' contention that he could not be sentenced to death because he is mentally retarded.

Held: Executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Pp. 311-321. (a) A punishment is "excessive," and therefore prohibited by the Amendment, if it is not graduated and proportioned to the offense. E. g., Weems v. United States, 217 U. S. 349, 367. An excessiveness claim is judged by currently prevailing standards of decency. Trop v. Dulles, 356 U. S. 86,100-101. Proportionality review under such evolving standards should be informed by objective factors to the maximum possible extent, see, e. g., Harmelin v. Michigan, 501 U. S. 957, 1000, the clearest and most reliable of which is the legislation enacted by the country's legislatures, Penry, 492 U. S., at 331. In addition to objective evidence, the Constitution contemplates that this Court will bring its own judgment to bear by asking whether there is reason to agree or disagree with the judgment reached by the citizenry and its legislators, (b) Much has changed since Penry's conclusion that the two state statutes then existing that prohibited such executions, even when added to the 14 States that had rejected capital punishment completely, did not provide sufficient evidence of a consensus. 492 U. S., at 334. Subsequently, a significant number of States have concluded that death is not a suitable punishment for a mentally retarded criminal, and similar bills have passed at least one house in other States. It is not so much the number of these States that is significant, but the consistency of the direction of change. Given that anticrime legislation is far more popular than legislation protecting violent criminals, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of legislation reinstating such executions) provides powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures addressing the issue have voted overwhelmingly in favor of the prohibition.

305 Moreover, even in States allowing the execution of mentally retarded offenders, the practice is uncommon. Pp. 313-317. (c) An independent evaluation of the issue reveals no reason for the Court to disagree with the legislative consensus. Clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others' reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability. In light of these deficiencies, the Court's death penalty jurisprudence provides two reasons to agree with the legislative consensus. First, there is a serious question whether either justification underpinning the death penalty-retribution and deterrence of capital crimes-applies to mentally retarded offenders. As to retribution, the severity of the appropriate punishment necessarily depends on the offender's culpability. If the culpability of the average murderer is insufficient to justify imposition of death, see Godfrey v. Georgia, 446 U. S. 420, 433, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. As to deterrence, the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the death penalty's deterrent effect with respect to offenders who are not mentally retarded. Second, mentally retarded defendants in the aggregate face a special risk of wrongful execution because of the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanor may create an unwarranted impression of lack of remorse for their crimes. Pp. 317-321.

EN BANC [G.R. No. 149276. September 27, 2002.]

JOVENCIO LIM and TERESITA LIM, petitioners, vs. THE PEOPLE OF THE PHILIPPINES, THE REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 217, THE CITY PROSECUTOR OF QUEZON CITY, AND WILSON CHAM, respondents.

The constitutionality of PD 818, a decree which amended Article 315 of the Revised Penal Code by increasing the penalties for estafa committed by means of bouncing checks, is being challenged in this petition for certiorari, for being violative of the due process clause, the right to bail and the provision against cruel, degrading or inhuman punishment enshrined under the Constitution. IADaSE Settled is the rule that a punishment authorized by statute is not cruel, degrading or disproportionate to the nature of the offense unless it is flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community. It takes more than merely being harsh, excessive, out of proportion or severe for a penalty to be obnoxious to the Constitution. 2 Based on this principle, the Court has consistently overruled contentions of the defense that the penalty of fine or imprisonment authorized by the statute involved is cruel and degrading. In People vs. Tongko, 3 this Court held that the prohibition against cruel and unusual punishment is generally aimed at the form or character of the punishment rather than its severity in respect of its duration or amount, and applies to punishments which never existed in America or which public sentiment regards as cruel or obsolete. This refers, for instance, to those inflicted at the whipping post or in the pillory, to burning at the stake, breaking on the wheel, disemboweling and the like. The fact that the penalty is severe provides insufficient basis to declare a law unconstitutional and does not, by that circumstance alone, make it cruel and inhuman. Petitioners also argue that while PD 818 increased the imposable penalties for estafa committed under Article 315, par. 2 (d) of the Revised Penal Code, it did not increase the amounts corresponding to the said new penalties. Thus, the original amounts provided for in the Revised Penal Code have remained the same notwithstanding that they have become negligible and insignificant compared to the present value of the peso. This argument is without merit. The primary purpose of PD 818 is emphatically and categorically stated in the following: WHEREAS, reports received of late indicate an upsurge of estafa (swindling) cases committed by means of bouncing checks; WHEREAS, if not checked at once, these criminal acts would erode the people's confidence in the use of negotiable instruments as a medium of commercial transaction and consequently result in the retardation of trade and commerce and the undermining of the banking system of the country; WHEREAS, it is vitally necessary to arrest and curb the rise in this kind of estafa cases by increasing the existing penalties provided therefor. Clearly, the increase in the penalty, far from being cruel and degrading, was motivated by a laudable purpose, namely, to effectuate the repression of an evil that undermines the country's commercial and economic growth, and to serve as a necessary precaution to deter people from issuing bouncing checks. The fact that PD 818 did not increase the amounts corresponding to the new penalties only proves that the amount is immaterial and inconsequential. What the law sought to avert was the proliferation of estafa cases committed by means of bouncing checks. Taking into account the salutary purpose for which said law was decreed, we conclude that PD 818 does not violate Section 19 of Article III of the Constitution.

NON-IMPRISONMENT FOR NON-PAYMENT OF DEBT OR POLL TAX EN BANC

[G.R. No. L-63419. December 18, 1986.]

FLORENTINA A. LOZANO, petitioner, vs. THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch XX, Manila, and the HONORABLE JOSE B. FLAMINIANO, in his capacity as City Fiscal of Manila, respondents. 1. CONSTITUTIONAL LAW; B.P. 22 (BOUNCING CHECK LAW); COVERS ALL KINDS OF CHECKS. The language of BP 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value. 2. CRIMINAL LAW; BOUNCING CHECKS LAW (B.P. 22); ESSENTIAL ELEMENT OF KNOWLEDGE; PRIMA FACIE PRESUMED BY REFUSAL OF DRAWEE TO PAY UPON PRESENTMENT. An essential element of the offense is "knowledge" on the part of the maker or drawer of the check of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment. Since this involves a state of mind difficult to establish, the statute itself creates a prima facie presumption of such knowledge where payment of the check "is refused by the drawee because of insufficient funds in or credit with such bank when presented within ninety (90) days from the date of the check. 3. ID.; ID.; ID.; ID.; SHALL NOT ARISE WHEN PAYMENT IS MADE WITHIN FIVE (5) DAYS FROM RECEIPT OF DISHONOR. To mitigate the harshness of the law in its application, the statute provides that such presumption shall not arise if within five (5) banking days from receipt of the notice of dishonor, the maker or drawer makes arrangements for payment of the check by the bank or pays the holder the amount of the check. 4. ID.; ID.; DISHONOR OF CHECK BY DRAWEE BANK; PRIMA FACIE PROOF OF MAKING OR ISSUANCE OF CHECK AND DUE PRESENTMENT THEREOF. Another provision of the statute, also in the nature of a rule of evidence, provides that the introduction in evidence of the unpaid and dishonored check with the drawee bank's refusal to pay "stamped or written thereon or attached thereto, giving the reason therefore, shall constitute prima facie proof of "the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof . . . for the reason written, stamped or attached by the drawer on such dishonored check." The presumptions being merely prima facie, it is open to the accused of course to present proof to the contrary to overcome the said presumptions. 5. ID.; ID.; DISTINGUISHED FROM ARTICLE 315, REVISED PENAL CODE. Article 315 of the Revised Penal Code defining the crime of estafa reads as follows: "Article 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned herein below shall be punished by . . . 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits; . . . (d) By postdating a check, or issuing a check in payment of an obligation the offender knowing that at the time he had no funds in the bank, or the funds deposited by him were not sufficient to cover the amount of the check without informing the payee of such circumstances." The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of pre-existing obligations. The rationale of this interpretation is that in estafa, the deceit causing the defraudation must be prior to or simultaneous with the commission of the fraud. In issuing a check as payment for a pre-existing debt, the drawer does not derive any material benefit in return or as consideration for its issuance. On the part of the payee, he had already parted with his money or property before the check is issued to him, hence, he is not defrauded by means of any "prior" or "simultaneous" deceit perpetrated on him, by the drawer of the check. 6. ID.; ARTICLE 315, REVISED PENAL CODE AS AMENDED BY R.A. 4885; PAYMENT OF PRE-EXISTING OBLIGATIONS NOT COVERED. Article 315, as amended by Republic Act 4885, does not cover checks issued in payment of pre-existing obligations, again relying on the concept underlying the crime of estafa through false pretense or deceit - which is, that the deceit or false pretense must be prior to or simultaneous with the commission of the fraud. 7. ID.; BATASANG PAMBANSA 22 (BOUNCING CHECK LAW;) THRUST OF LAW; PUNISHES ACT OF MAKING OR ISSUING WORTHLESS CHECK AS AN OFFENSE AGAINST PUBLIC ORDER. The gravamen of the offense punished by B.P. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of sanctions, the making of worthless checks and putting them is circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. 8. CONSTITUTIONAL LAW; BATASANG PAMBANSA; MAY PRESCRIBE CRIMINAL PUNISHMENT FOR ACTS INIMICAL TO PUBLIC WELFARE; MALUM PROHIBITUM. It may be constitutionally impermissible for the legislature to penalize a person for non-payment of a debt excontractu. But certainly it is within the prerogative of the lawmaking body to proscribe certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only facts which the

law can punish. An act may not be considered by society as inherently wrong, hence not malum in se, but because of the harm that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The state can do this in the exercise of its police power. 9. ID.; ID.; POLICE POWER; BATASANG PAMBANSA 22; VALID EXERCISE THEREOF; NOT REPUGNANT TO CONSTITUTIONAL INHIBITION AGAINST IMPRISONMENT FOR DEBT. The police power of the state has been described as "the most essential, insistent and illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. It is power not emanating from or conferred by the constitution, but inherent in the state, plenary, "suitably vague and far from precisely defined, rooted in the conception that man in organizing the state and imposing upon the government limitations to safeguard constitutional rights did not intend thereby to enable individual citizens or group of citizens to obstruct unreason able the enactment of such salutary measures to ensure communal peace, safety, good order and welfare." The enactment of B.P. 22 is a declaration by the legislature that, as a matter of public policy, the making and issuance of a worthless check is deemed a public nuisance to be abated by the imposition of penal sanctions. The effect of the issuance of a worthless checks transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. In sum, we find the enactment of B.P. 22 a valid exercise of the police power and is not repugnant to the constitutional inhibition against imprisonment for debt. 10. ID.; B.P. 22; FREEDOM OF CONTRACT NOT IMPAIRED CHECKS NOT CATEGORIZED AS CONTRACTS. We find not valid ground to sustain the contention that B.P. 22 impairs freedom of contract. The freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts. Contracts which contravene public policy are not lawful. We must bear in mind that checks can not be categorized as mere contracts. It is a commercial instrument which, in this modern day and age, has become a convenient substitute for money; it form part of the banking system and therefore not entirely free from the regulatory power of the state. 11. ID.; BILL OF RIGHTS; EQUAL PROTECTION OF LAW DOES NOT PRECLUDE CLASSIFICATION OF INDIVIDUALS; CASE AT BAR. Neither do we find substance in the claim that the statute in question denies equal protection of the laws or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is contended that the payee is just as responsible for the crime as the drawer of the check, since without the indispensable participation of the payee by his acceptance of the check there would be no crime. This argument is tantamount to saying that, to give equal protection, the law should punish both the swindler and the swindled. The petitioners' posture ignores the well-accepted meaning of the clause "equal protection of the laws". The clause does not preclude classification of individuals, who may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary.

DOUBLE JEOPARDY THIRD DIVISION [G.R. Nos. 137953-58. April 11, 2002.]

PEOPLE OF THE PHILIPPINES, appellant, vs. WILFREDO DELA TORRE, appellee. The prosecution asks this Court to modify the RTC Decision by imposing the supreme penalty of death on the accused. It argues that it has proven that the victim is the daughter of the accused, and that she was below eighteen (18) years old when the rapes took place. As a consequence, the trial court should have imposed the penalty of death pursuant to Section 11 of RA 7659. 23 Under Section 1, Rule 122 of the 2000 Rules of Criminal Procedure, any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. This provision is substantially the same as that provided by the 1985 Rules. The question now is whether an increase in the penalty imposed by the lower court will violate the right of the accused against double jeopardy. In several cases, this Court has already definitively ruled on this issue. Recently, in People v. Leones, 24 it unmistakably declared that "[w]hile it is true, that this Court is the Court of last resort, there are allegations of error committed by a lower court which we ought not to look into to uphold the right of the accused. Such is the case in an appeal by the prosecution seeking to increase the penalty imposed upon the accused for this runs afoul of the right of the accused against double jeopardy." 25 It added: "This Court has not just once ruled that where the accused after conviction by the trial court did not appeal his conviction, an appeal by the government seeking to increase the penalty imposed by the trial court places the accused in double jeopardy and should therefore be dismissed." 26 This doctrine was applied as early as 1904 in Kepner v. United States 27 (hereinafter "Kepner"), as follows: "The Court of First Instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense." 28 The Kepner doctrine was clarified in a 1987 case. 29 Speaking through justice Isagani A. Cruz, the Court explained that an "appeal of the prosecution from a judgment of acquittal (or for the purpose of increasing the penalty imposed upon the convict) would place him in double jeopardy." 30 Double jeopardy provides three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. 31 Although Kepner technically involved only a single proceeding, the Court regarded the practice as equivalent to two separate trials, and the evil that the Court saw in the procedure was plainly that of multiple prosecution. 32 The ban on double jeopardy is deeply rooted in jurisprudence. The doctrine has several avowed purposes. Primarily, it prevents the State from using its criminal processes as an instrument of harassment to wear out the accused by a multitude of cases with accumulated trials. 33 It also serves the additional purpose of precluding the State, following an acquittal, from successively retrying the defendant in the hope of securing a conviction. 34 And finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty. 35 Being violative of the right against double jeopardy, the instant appeal filed by the prosecution cannot prosper. The rule is clear the prosecution cannot appeal on the ground that the accused should have been given a more severe penalty. 36 Besides, even assuming that the penalties imposed by the RTC were erroneous, these cannot be corrected by this Court on an appeal by the prosecution. Said the Court: "Whatever error may have been committed by the lower court was merely an error of judgment and not of jurisdiction. It did not affect the intrinsic validity of the decision. This is the kind of error that can no longer be rectified on appeal by the prosecution no matter how obvious the error may be." 37 The only way to nullify an acquittal or to increase the penalty is through a proper petition for certiorari to show grave abuse of discretion. This was explained in People v. CA and Maquiling 38 as follows:

"While certiorari may be used to correct an abusive acquittal, the petitioner in such extraordinary proceeding must clearly demonstrate that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. On the other, hand, if the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the court a quo, the constitutional right against double jeopardy would be violated. Such recourse is tantamount to converting the petition for certiorari into an appeal, contrary to the express injunction of the Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy." 39

FIRST DIVISION [G.R. No. L-45129. March 6, 1987.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents. Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could if he failed to plead double jeopardy be convicted of the same act charged in case No. 16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date and in the price therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy. It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein." Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charged: the constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute. LLjur

The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities though one be subordinate to the other and the plea of double jeopardy would never be. The discussions during the 19341935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13 The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute). In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of acts that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion. LLpr In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing his electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices. It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The identity of offenses that must be shown need not be absolute identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen, et al., 88 Phil. 51 (1951): "While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission by simply adding or subtracting essential elements. Under the theory of appellant the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin." (88 Phil. at 53; emphases supplied). By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find. It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal

liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15 It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case. cdphil The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized electrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17 ) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence.

EX POST FACTO LAW

FIRST DIVISION [G.R. No. L-32485. October 22, 1970.]

IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8 OF R.A. No. 6132. KAY VILLEGAS KAMI, INC., petitioner

SYLLABUS

1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; CONSTITUTIONAL CONVENTION LAW, CONSTITUTIONAL, REASONS. The questioned provision, Section 8(a) of the Constitutional Convention Law, is a valid limitation on the due process, freedom of expression, freedom of association, freedom of assembly and equal protection clauses of the bill of rights of the Constitution for the same is designed to prevent the clear and present danger of the twin substantive evils, namely, the prostitution of electoral process and denial of the equal protection of the laws. Moreover, under the balancingof-interests test, the cleansing of the electoral process, the guarantee of equal chances for all candidates and the independence of the delegates who must be "beholden to no one but to God, country and conscience," are interests that should be accorded primacy. 2. ID.; ID.; ID;. SEC. 8(a) OF REPUBLIC ACT 6132 NOT EX POST FACTO LAW. Section 8(a) of Republic Act 6132 is not an ex post facto law for the constitutional inhibition refers only to criminal laws which arc given retroactive effect. While it is true that Sec. 18 penalties a violation of any provision of R.A. 6132 including Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto. There is nothing in the law that remotely insinuates that Sec. 8(a) and 18, or any other provision thereof, shall apply to acts carried out prior to its approval. On the contrary, Sec. 23 directs that the entire law shall be effective upon its approval on August 24, 1970.

FIRST DIVISION [G.R. Nos. L-32613-14. December 27, 1972.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON N. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents.

The argument that the Act is unconstitutionally overbroad because section 2 merely speaks of "overthrow" of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase "knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitions of and the penalties prescribed for the different acts prescribed are stated in section 4 which requires that membership in the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear that the overthrow

contemplated is "overthrow not only by force and violence but also by deceit, subversion and other illegal means." The absence of this qualification in section 2 appears to be due more to an oversight rather than to deliberate omission. Moreover, the word "overthrow" sufficiently connotes the use of violent and other illegal means. Only in a metaphorical sense may one speak of peaceful overthrow of governments, and certainly the law does not speak in metaphors. In the case of the AntiSubversion Act, the use of the word "overthrow" in a metaphorical sense is hardly consistent with the clearly delineated objective of the "overthrow," namely, "establishing in the Philippines a totalitarian regime and place [sic] the Government under the control and domination of an alien power." What this Court once said in a prosecution for sedition is apropos: "The language used by the appellant clearly imported an overthrow of the Government by violence, and it should be interpreted in the plain and obvious sense in which it was evidently intended to be understood. The word 'overthrow' could not have been intended as referring to an ordinary change by the exercise of the elective franchise. The use of the whip [which the accused exhorted his audience to use against the Constabulary], an instrument designed to leave marks on the sides of adversaries, is inconsistent with the mild interpretation which the appellant would have us impute to the language." 45 IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence or other illegal means. Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country. The membership clause of the U.S. Federal Smith Act is similar in many respects to the membership provision of the AntiSubversion Act. The former provides: "Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliated with, any such society, group or assembly of persons, knowing the purpose thereof "Shall be fined not more than $20,000 or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction, . . ." 46 In sustaining the validity of this provision, the Court said in Scales vs. United, States: 47 "It was settled in Dennis that advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the first Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Amendment." Moreover, as was held in another case, where the problems of accommodating the exigencies of self-preservation and the values of liberty are as complex and intricate as in the situation described in the legislative findings stated in the U.S. Federal Subversive Activities Control Act of 1950, the legislative judgment as to how that threat may best be met consistently with the safeguards of personal freedoms is not to be set aside merely because the judgment of judges would, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom to hire or freedom to speak, is itself an effort at compromise between the claims of the social order and individual freedom, and when the legislative compromise in either case is brought to the judicial test the court stands one step removed from the conflict and its resolution through law." 49 V. The Act and its Title

The respondent Tayag invokes the constitutional command that "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50 What is assailed as not germane to or embraced in the title of the Act is the last proviso of section 4 which reads: "And provided, finally, That one who conspires with any other person to overthrow the Government of the Republic of the Philippines, or the government of any of its political subdivisions by force, violence, deceit, subversion or illegal means, for the purpose of placing such Government or political subdivision under the control and domination of any lien power, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the same code."

It is argued that the said proviso, in reality, punishes not only membership in the Communist Party of the Philippines or similar associations, but as well "any conspiracy by two persons to overthrow the national or any local government by illegal means, even if their intent is not to establish a totalitarian regime, but a democratic regime, even if their purpose is not to place the nation under an alien communist power, but under an alien democratic power like the United States or England or Malaysia or even an anti-communist power like Spain, Japan, Thailand or Taiwan or Indonesia." The Act, in addition to its main title ("An Act to Outlaw the Communist Party of the Philippines and Similar Associations, Penalizing Membership Therein, and for Other Purposes"), has a short title. Section 1 provides that "This Act shall be known as the Anti-Subversion Act." Together with the main title, the short title of the statute unequivocally indicates that the subject-matter is subversion in general which has for its fundamental purpose the substitution of a foreign totalitarian regime in place of the existing Government and not merely subversion by Communist conspiracies. The title of a bill need not be a catalogue or an index of its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear terms the nature, scope, and consequences of the proposed law and its operation. 52 A narrow or technical construction is to be avoided, and the statute will be read fairly and reasonably in order not to thwart the legislative intent. We hold that the Anti-Subversion Act fully satisfies these requirements. VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of the Anti-Subversion Act, we cannot overemphasize the need for prudence and circumspection in its enforcement, operating as it does in the sensitive area of freedom of expression and belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act. The Government, in addition to proving such circumstances as may affect liability, must establish the following elements of the crime of joining the Communist Party of the Philippines or any other subversive association: (1) In the case of subversive organizations other than the Communist Party of the Philippines, (a) that the purpose of the organization is to overthrow the present Government of the Philippines and to establish in this country a totalitarian regime under the domination of a foreign power; (b) that the accused joined such organization; and (c) that he did so knowingly, willfully and by overt acts; and(2) In the case of the Communist Party of the Philippines, (a) that the CPP continues to pursue the objectives which led Congress in 1957 to declare it to be an organized conspiracy for the overthrow of the Government by illegal means for the purpose of placing the country under the control of a foreign power; (b) that the accused joined the CPP; and (c) that he did so willfully, knowingly and by overt acts. We refrain from making any pronouncement as to the crime of remaining a member of the Communist Party of the Philippines or of any other subversive association; we leave this matter to future determination.

ACADEMIC FREEDOM FIRST DIVISION [G.R. No. 127930. December 15, 2000.]

MIRIAM COLLEGE FOUNDATION, INC., petitioner, vs. HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO, ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD GARY RENACIDO, respondents.

"To uphold and protect the freedom of the press even at the campus level and to promote the development and growth of campus journalism as a means of strengthening ethical values, encouraging critical and creative thinking, and developing moral character and personal discipline of the Filipino youth," 28 Congress enacted in 1991 Republic Act No. 7079. Entitled "AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND FOR OTHER

PURPOSES," 29 the law contains provisions for the selection of the editorial board 30 and publication adviser, 31 the funding of the school publication, 32 and the grant of exemption to donations used actually, directly and exclusively for the promotion of campus journalism from donor's or gift tax. 33 Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its members. Thus, the second paragraph of Section 4 states that "(o)nce the publication is established, its editorial board shall freely determine its editorial policies and-manage the publication's funds." Section 7, in particular, provides: A member of the publication staff must maintain his or her status as student in order to retain membership in the publication staff. A student shall not be expelled or suspended solely on the basis of articles he or she has written, or on the basis of the performance of his or her duties in the student publication. Section 9 of the law mandates the DECS to "promulgate the rules and regulations necessary for the effective implementation of this Act." 34 Pursuant to said authority, then DECS Secretary Armand Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule XII that: GENERAL PROVISIONS SECTION 1. The Department of Education, Culture and Sports (DECS) shall help ensure and facilitate the proper carrying out of the Implementing Rules and Regulations of Republic Act No. 7079. It shall also act on cases on appeal brought before it. The DECS regional office shall have the original jurisdiction over cases as a result of the decisions, actions and policies of the editorial board of a school within its area of administrative responsibility. It shall conduct investigations and hearings on the these cases within fifteen (15) days after the completion of the resolution of each case. (Emphasis supplied.) The latter two provisions of law appear to be decisive of the present case. It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the students, the latter filed a petition for certiorari and prohibition in the Regional Trial Court raising, as grounds therefor, that: DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE. 35 II DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY THE LATTER OF THEIR RIGHT TO DUE PROCESS. 36 Anent the first ground, the students theorized that under Rule XII of the Rules and Regulations for the Implementation of R.A. No. 7079, the DECS Regional Office, and not the school, had jurisdiction over them. The second ground, on the other hand, alleged lack of impartiality of the Miriam Disciplinary Board, which would thereby deprive them of due process. This contention, if true, would constitute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial court. These were the same grounds invoked by the students in their refusal to answer the charges against them. The issues were thus limited to the question of jurisdiction a question purely legal in nature and well within the competence and the jurisdiction of the trial court, not the DECS Regional Office. This is an exception to the doctrine of primary jurisdiction. As the Court held in Phil. Global Communications, Inc. vs. Relova. 37 Absent such clarity as to the scope and coverage of its franchise, a legal question arises which is more appropriate for the judiciary than for an administrative agency to resolve. The doctrine of primary jurisdiction calls for application when there is such competence to act on the part of an administrative body. Petitioner assumes that such is the case. That is to beg the question. There is merit, therefore, to the approach taken by private respondents to seek judicial remedy as to whether or not the legislative franchise could be so interpreted as to enable the National Telecommunications Commission to act on the matter. A jurisdictional question thus arises and calls for an answer. cSITDa

However, when Miriam College in its motion for reconsideration contended that the DECS Regional Office, not the RTC, had jurisdiction, the trial court, refusing to "be more popish than the Pope," dismissed the case. Indeed, the trial court could hardly contain its glee over the fact that "it will have one more case out of its docket." We remind the trial court that a court having jurisdiction of a case has not only the right and the power or authority, but also the duty, to exercise that jurisdiction and to render a decision in a case properly submitted to it. 38 Accordingly, the trial court should not have dismissed the petition without settling the issues presented before it. III Before we address the question of which between the DECS Regional Office and Miriam College has jurisdiction over the complaints against the students, we first delve into the power of either to impose disciplinary sanctions upon the students. Indeed, the resolution of the issue of jurisdiction would be reduced to an academic exercise if neither the DECS Regional Office nor Miriam College had the power to impose sanctions upon the students. Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the expulsion or suspension of a student solely on the basis of articles he or she has written. A. Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. 39 The essential freedoms subsumed in the term "academic freedom" encompasses the freedom to determine for itself on academic grounds: (1) (2) (3) (4) Who may teach, What may be taught, How it shall be taught, and Who may be admitted to study. 40

The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall be taught." A school certainly cannot function in an atmosphere of anarchy. Thus, there can be no doubt that the establishment of an educational institution requires rules and regulations necessary for the maintenance of an orderly educational program and the creation of an educational environment conducive to learning. Such rules and regulations are equally necessary for the protection of the students, faculty, and property. 41 Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach." Incidentally, the school not only has the right but the duty to develop discipline in its students. The Constitution no less imposes such duty. DaESIC [All educational institutions] shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency. 42 In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its responsibility to help its students "grow and develop into mature, responsible, effective and worthy citizens of the community." 43

Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be admitted to study." If a school has the freedom to determine whom to admit, logic dictates that it also has the right to determine whom to exclude or expel, as well as upon whom to impose lesser sanctions such as suspension and the withholding of graduation privileges. Thus, in Ateneo de Manila vs. Capulong, 44 the Court upheld the expulsion of students found guilty of hazing by petitioner therein, holding that: No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do. More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitution. 45 Tracing the development of academic freedom, the Court continued: Since Garcia vs. Loyola School of Theology, we have consistently upheld the salutary proposition that admission to an institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student rather than a right. While under the Education Act of 1982, students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution. "For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students. This right . . . extends as well to parents . . . as parents under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the schools." Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college. The rules may include those governing student discipline." Going a step further, the establishment of the rules governing universitystudent relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival. Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the students demanded and plucked for themselves from the panoply of academic freedom their own rights encapsulized under the rubric of "right to education" forgetting that, In Hohfeldian terms, they have the concomitant duty, and that is, their duty to learn under the rules laid down by the school. . . . It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; may, the development, or flowering if you will, of the total man. In essence, education must ultimately be religious not in the sense that the founders or charter members of the institution are sectarian or profess a religious ideology. Rather, a religious education, as the renowned philosopher Alfred North Whitehead said, is 'an education which inculcates duty and reverence.' It appears that the particular brand of religious education offered by the Ateneo de Manila University has been lost on the respondent students. Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them. Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The maintenance of a morally conducive and orderly educational environment will be seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to admit petitioner's children and to reintegrate them to the student body." Thus, the decision of petitioner university to expel them is but congruent with the gravity of their misdeeds. 46 B. Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate educational institution:

The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions. As may be gleaned from the above provision, such power to regulate is subject to the requirement of reasonableness. Moreover, the Constitution allows merely the regulation and supervision of educational institutions, not the deprivation of their rights.

EN BANC [G.R. No. L-40779. November 28, 1975.]

EPICHARIS T. GARCIA, petitioner, vs. THE FACULTY ADMISSION COMMITTEE, LOYOLA SCHOOL OF THEOLOGY, herein represented by FR. ANTONIO B. LAMBINO, respondent. SYLLABUS 1. CONSTITUTIONAL LAW; ACADEMIC FREEDOM; FREEDOM ACCORDED TO A FACULTY MEMBER, NATURE OF. The academic freedom enjoyed by institutions of higher learning as recognized in the Constitution is more often identified with the right of a faculty member to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable to the power that be, whether in the political, economic, or academic establishment. It is "a right claimed by the accredited educator, as teacher and as investigator, to interpret his findings and to communicate his conclusions without being subjected to any interference, molestation, or penalization because these conclusions are unacceptable to some constituted authority within or beyond the institution." Otherwise stated, "it is the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence. It is subject to no control or authority except the control or authority of the rational methods by which truths or conclusions are sought and established in these disciplines." 2. ID.; ID.; FREEDOM ENJOYED BY SCHOOL AS AN INSTITUTION OF HIGHER LEARNING. Since the academic freedom recognized by the Constitution makes reference to the "institutions of higher learning" as recipients of this boon, it follows that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. This constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and nullify its intent. 3. ID.; ID.; ACADEMIC FREEDOM OF A UNIVERSITY DISTINGUISHED FROM THAT OF A FACULTY MEMBER. The Constitution grants the right of academic freedom to the university as an institution as distinguished from the academic freedom of a university professor. For it is a well-established fact, and yet one which sometimes tend to be obscured in discussions of the problems of freedom, that the collective liberty of an organization is by no means the same thing as the freedom of the individual members within it; in fact, the two kinds of freedom are not even necessarily connected. In considering the problems of academic freedom one must distinguish between the autonomy of the university as a corporate body, and the freedom of the individual university teacher. 4. ID.; ID.; ID.; FUNCTION OF A UNIVERSITY. It is the business of a university to provide that atmosphere which is most conductive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

5. ID.; ID.; UNIVERSITIES, UNLIKE PUBLIC UTILITIES, HAVE DISCRETION AS TO WHOM TO ADMIT OR REJECT. The full respect that must be accorded the academic freedom expressly granted by the Constitution to institutions of higher learning, should not be minimized. Colleges and universities should not be looked upon as public utilities devoid of any discretion as to whom to admit or reject. Education, especially higher education, belongs to a different, and certainly higher category. 6. ID.; ID.; SUFFICIENCY OF GROUNDS FOR DENIAL OF ADMISSION OF STUDENT. Where a woman student was denied admission to pursue graduate studies leading to a Master of Arts in Theology in a school of theology, a seminary for priesthood, and for reasons explained by the authorities of said school, it was deemed best, in the interests of the school as well as of the other students and her own welfare, that she continue her graduate work elsewhere, there is nothing arbitrary in such appraisal of the circumstances deemed relevant, thereby rendering futile the persistence of said student to continue her studied in said school. THIRD DIVISION

DE LA SALLE UNIVERSITY, INC., G.R. No. 127980 EMMANUEL SALES, RONALD HOLMES, JUDE DELA TORRE, AMPARO RIO, CARMELITA Present:

QUEBENGCO, AGNES YUHICO and JAMES YAP, Petitioners, YNARES-SANTIAGO, J., Chairperson, QUISUMBING,* CHICO-NAZARIO, - versus VELASCO, JR.,** and REYES, JJ.

THE COURT OF APPEALS, HON. WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE

Vice Associate Justice Ma. Alicia Austria-Martinez, per Raffle dated November 28, 2007. Justice AustriaMartinez concurred with the CA decision under consideration when she was still a member of that Court (see note 2). ** Vice Associate Justice Antonio Eduardo B. Nachura, per Raffle dated November 19, 2007. Justice Nachura previously participated in this case as Solicitor General.

COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES, JR., Respondents. December 19, 2007 Promulgated:

Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay nagtataglay ng kalayaang akademiko na sakop ang karapatang pumili ng mga mag-aaral dito.

Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint.1[74] According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.2[75]

It cannot be gainsaid that the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom what to teach.3[76] Indeed, while it is categorically stated under the Education Act of 1982 that students have a right to freely choose their field of study, subject to existing curric ula and to continue their course therein up to graduation,4[77] such right is subject to the established academic and disciplinary standards laid down by the academic institution. Petitioner DLSU, therefore, can very well exercise its academic freedom, which includes its free choice of students for admission to its school.

G.R. No. 99327 May 27, 1993 ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS, S. J., DEAN CYNTHIA ROXAS-DEL CASTILLO, JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE CLARO TESORO, RAMON CAGUIOA, and RAMON ERENETA . petitioners, vs. HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-Makati, Br. 134, ZOSIMO MENDOZA, JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO SABBAN, DALMACIO LIM JR., MANUEL ESCONA and JUDE FERNANDEZ, respondents.

More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitutions. At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix Frankfurter in the term "academic freedom" cited in the case of Sweezy v. New Hampshire, 37 thus: (1) who may teach: (2) what may be taught; (3) how it shall be taught; and (4) who may be admitted to study. Socrates, the "first of the great moralists of Greece," proud to claim the title "gadfly of the State" has deservedly earned for himself a respected place in the annals of history as a martyr to the cause of free intellectual inquiry. To Plato, this great teacher of his was the "best, the most sensible, and the most sensible, and the most just man of his age." In 399 B.C., he willingly quaffed the goblet of hemlock as punishment for alleged "corruption" of the youth of Athens. He describes in his own words how this charge of "corruption," the forerunner of the concept of academic freedom, came about: Young men of the richer classes, who have not much to do, come about me of their own accord: they like to heart the pretenders examined, and they often imitate me, and examine others themselves; there are plenty of person, as they soon discover, who think that they know something, but really know little or nothing; and then those who are examined by them instead of being angry with themselves are angry with me. This confounded Socrates, they say; this villainous misleader of youth. And then if somebody asks them, Why, what evil does he practice or teach? they do not know, and cannot tell; but in order that they may not appear to be at a loss, they repeat the ready-made charges which are used against all philosophers about teaching things up in the clouds and under the earth, and having no gods, and making the worse appear the better cause; for they do not like to confess that their pretense of knowledge has been detected which is the truth; and as they are numerous and ambitious and energetic, and are all in battle array and have persuasive tongues, they have filled your ears with their loud and inveterate calumnies. 38 Since Socrates, numberless individuals of the same heroic mold have similarly defied the stifling strictures of authority, whether State, Church, or various interest groups, to be able to give free rein to their ideas. Particularly odious were the insidious and blatant attempts at thought control during the time of the Inquisition until even the Medieval universities, renowned as intellectual centers in Europe, gradually lost their autonomy. In time, such noble strivings, gathering libertarian encrustations along the way, were gradually crystallized in the cluster of freedoms which awaited the champions and martyrs of the dawning modern age. This was exemplified by the professors of the new German universities in the 16th and 17th centuries such as the Universities of Leiden (1554), Helmstatdt (1574) and Heidelberg (1652). The movement back to freedom of inquiry gained adherents among the exponents of fundamental human rights of the 19th and 20th centuries. "Academic freedom", the term as it evolved to describe the emerging rights related to intellectual liberty, has traditionally been associated with freedom of thought, speech, expression and the press; in other words, with the right of individuals in university communities, such as professors, researchers and administrators, to investigate, pursue,

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

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

COMMISSION ON HUMAN RIGHTS EN BANC [G.R. No. 96681. December 2, 1991.]

HON. ISIDRO CARIO, in his capacity as Secretary of the Department of Education, Culture & Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of Manila, petitioners, vs. THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and APOLINARIO ESBER, respondents. The proposition is made clear by the constitutional provisions specifying the powers of the Commission on Human Rights. The Commission was created by the 1987 Constitution as an independent office. 23 Upon its constitution, it succeeded and superseded the Presidential Committee on Human Rights existing at the time of the effectivity of the Constitution. 24 Its powers and functions are the following: 25 "(1) rights; Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) (5) rights; Exercise visitorial powers over jails, prisons, or detention facilities; Establish a continuing program of research, education, and information to enhance respect for the primacy of human

(6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) (10) (11) Bequest the assistance of any department, bureau, office, or agency in the performance of its functions; LLjur Appoint its officers and employees in accordance with law; and Perform such other duties and functions as may be provided by law."

As should at once be observed, only the first of the enumerated powers and functions bears any resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the Commission the power to investigate all forms of human rights violations involving civil and political rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise that power pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation conducted by it or under its authority, it may grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth. It may also request the assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by its findings. 26 But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasijudicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood and quite distinct meanings. "Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to search or inquire into: . . . to

subject to an official probe . . .: to conduct an official inquiry." 27 The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry. The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." 29 "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as judge." 30 And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . ." 31 In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." 32 Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a claim that in the administrative disciplinary proceedings against the teachers in question, initiated and conducted by the DECS, their human rights, or civil or political rights had been transgressed. More particularly, the Commission has no power to "resolve on the merits" the question of (a) whether or not the mass concerted actions engaged in by the teachers constitute a strike and are prohibited or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those actions, and the failure of the teachers to discontinue those actions and return to their classes despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and regulations warranting administrative disciplinary sanctions, or are justified by the grievances complained of by them; and (c) what where the particular acts done by each individual teacher and what sanctions, if any, may properly be imposed for said acts or omissions. LLjur These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of Education, being within the scope of the disciplinary powers granted to him under the Civil Service Law, and also, within the appellate jurisdiction of the Civil Service Commission. Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues and resolved them, 33 and it appears that appeals have been seasonably taken by the aggrieved parties to the Civil Service Commission; and even this Court itself has had occasion to pass upon said issues. 34 Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary cases are correct and are adequately based on substantial evidence; whether or not the proceedings themselves are void or defective in not having accorded the respondents due process; and whether or not the Secretary of Education had in truth committed "human rights violations involving civil and political rights," are matters which may be passed upon and determined through a motion for reconsideration addressed to the Secretary of Education himself, and in the event of an adverse verdict, may be renewed by the Civil Service Commission and eventually by the Supreme Court. The Commission on Human Rights simply has no place in this scheme of things. It has no business intruding into the jurisdiction and functions of the Education Secretary or the Civil Service Commission. It has no business going over the same ground traversed by the latter and making its own judgment on the questions involved. This would accord success to what may well have been the complaining teachers' strategy to abort, frustrate or negate the judgment of the Education Secretary in the administrative cases against them which they anticipated would be adverse to them.

EN BANC [G.R. No. 100150. January 5, 1994.]

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO OCAMPO, petitioners, vs. COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; COMMISSION ON HUMAN RIGHTS; POWERS AND FUNCTIONS. The Commission on Human Rights was created by the 1987 Constitution. It was formally constituted by then President Corazon Aquino via Executive Order No. 163, issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded, but so superseded as well, the Presidential Committee on Human Rights. The powers and functions of the Commission are defined by the 1987 Constitution, thus: to - "(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program, of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law." 2. ID.; ID.; CANNOT EXERCISE ADJUDICATING POWER. In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has not heretofore been shared by this Court. In Cario v. Commission on Human Rights, the Court, through then Associate Justice, now Chief Justice Andres Narvasa, has observed that it is "only the first of the enumerated powers and functions that bears any resemblance to adjudication or adjudgment," but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained: ". . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have." 3. ID.; ID.; POWER TO INVESTIGATE ALL FORMS OF HUMAN RIGHTS VIOLATIONS INVOLVING CIVIL AND POLITICAL RIGHTS; "CIVIL RIGHTS"; DEFINED. Now written as Section 18, Article XIII, of the 1987 Constitution, is a provision empowering the Commission on Human Rights to "investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights" (Sec. 1). The term "civil rights," has been defined as referring - "(to) those (rights) that belong to every citizen of the state or country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government. They include the rights of property, marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a person by virtue of his citizenship in a state or community. Such term may also refer, in its general sense, to rights capable of being enforced or redressed in a civil action." Also quite often mentioned are the guarantees against involuntary servitude, religious persecution, unreasonable searches and seizures, and imprisonment for debt.

4. ID.; ID.; ID.; "POLITICAL RIGHTS"; DEFINED. Political rights, are said to refer to the right to participate, directly or indirectly, in the establishment or administration of government, the right of suffrage, the right to hold public office, the right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of government. 5. ID.; ID.; ID.; APPLICATION IN CASE AT BAR. In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private respondents on a land which is planned to be developed into a "People's Park." More than that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national highway. The consequent danger to life and limb is not thus to be likewise simply ignored. It is indeed paradoxical that a right which is claimed to have been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude that the order for the demolition of the stalls, sari-sari stores and carenderia of the private respondents can fall within the compartment of "human rights violations involving civil and political rights" intended by the Constitution. 6. ID.; ID.; POWER TO CITE OR HOLD ANY PERSON IN DIRECT OR INDIRECT CONTEMPT; APPLICATION. On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigating work. 7. ID.; ID.; HAS NO POWER TO ISSUE WRIT OF PRELIMINARY INJUNCTION; REASON THEREFOR. The "order to desist" (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. In Export Processing Zone Authority vs. Commission on Human Rights, the Court, speaking through Madame Justice Carolina Grio-Aquino, explained: "The constitutional provision directing the CHR to `provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection' may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the intention, the Constitution would have expressly said so. `Jurisdiction is conferred only by the Constitution or by law.' It is never derived by implication. Evidently, the `preventive measures and legal aid services' mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued `by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . .. A writ of preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation or protection of the rights and interests of a party thereto, and for no other purpose." The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate agency of government. 8. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; PROHIBITION; PROPER REMEDY IN CASE AT BAR. The public respondent explains that this petition for prohibition filed by the petitioners has become moot and academic since the case before it (CHR Case No. 90-1580) has already been fully heard, and that the matter is merely awaiting final resolution. It is true that prohibition is a preventive remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an act already accomplished. Here, however, said Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The instant petition has been intended, among other things, to also prevent CHR from precisely doing that.

CIVIL LIABILITY FOR VIOLATION OF RIGHTS EN BANC [G.R. No. L-69866. April 15, 1988.]

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO, NOEL ETABAG, DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN, petitioners, vs. MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1LT. PEDRO TANGO, 1LT. ROMEO RICARDO, 1LT. RAUL BACALSO, MSGT. BIENVENIDO BALABA, and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

SYLLABUS

1. CIVIL LAW; INDEPENDENT CIVIL ACTION; DAMAGES FOR VIOLATION OF CONSTITUTIONAL RIGHTS; MEMBERS OF THE ARMED FORCES LIABLE. Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. 2. ID.; ID.; ID.; NOT AFFECTED BY SUSPENSION OF THE PRIVILEGE OF WRIT OF HABEAS CORPUS. The suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. 3. CONSTITUTIONAL LAW; HABEAS CORPUS; SUSPENSION OF PRIVILEGE OF THE WRIT DOES NOT VALIDATE ILLEGAL ARREST OR DETENTION. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty. 4. CIVIL LAW; INDEPENDENT CIVIL ACTION; DAMAGES FOR VIOLATION OF CONSTITUTIONAL RIGHTS; DOCTRINE OF RESPONDEAT SUPERIOR NOT APPLICABLE TO SUPERIOR OFFICERS OF THE ARMED FORCES AND THEIR SUBORDINATES. The doctrine of respondeat superior is inapplicable to the case. We agree. The doctrine of respondeat superior has been generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates. 5. ID.; ID.; ID.; PERSONS RESPONSIBLE. Article 32 speaks of an officer or employee or person "directly" or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. 6. ID.; ID.; ID.; ID. By this provision, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors.

7. REMEDIAL LAW' MOTION TO DISMISS; FAILURE TO STATE A CAUSE OF ACTION, A GROUND; DETERMINED BY THE FACTS ALLEGED IN THE COMPLAINT. A motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of the complaint. To determine the sufficiency of the cause of

action, only the facts alleged in the complaint, and no others, should be considered. For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8. LEGAL ETHICS; ATTORNEYS; AUTHORITY TO APPEAR FOR A PARTY, ASSUMED. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse party or the party concerned, which was never done in this case. 9. REMEDIAL LAW; COMPLAINT; DISMISSAL OF COMPLAINT WITH RESPECT TO PARTIES WHOSE LAWYERS DID NOT SIGN THE MOTION FOR RECONSIDERATION CONSTITUTES GRAVE ABUSE OF DISCRETION. In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiffs. They needed no specific authority to do that. Thus, it was grave abuse on the part of respondent judge to take it upon himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent judge took umbrage under a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the plaintiffs whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned. TEEHANKEE, C.J., concurring: 1. CIVIL LAW; INDEPENDENT CIVIL ACTION; DAMAGES FOR VIOLATION OF CONSTITUTIONAL RIGHTS; PERSONS COVERED. All persons, be they public officers or employees, or members of the military or police force or private individuals who directly or indirectly obstruct, defeat, violate or in any manner impede or impair the constitutional rights and civil liberties of another person, stand liable and may be sued in court for damages as provided in Art. 32 of the Civil Code. 2. ID.; ID.; ID.; PRINCIPLE OF RESPONDEAT SUPERIOR; NOT APPLICABLE TO OFFICERS OF THE ARMED FORCES AND THEIR SUBORDINATES. The case at bar rejects the automatic application of the principle of respondeat superior or command responsibility that would hold a superior officer jointly and severally accountable for damages, including moral and exemplary, with his subordinates who committed such transgressions. 3. ID.; ID.; ID.; SUPERIOR OFFICER RESPONSIBLE FOR GROSS NEGLIGENCE IN ABDICATION OF PROPER SUPERVISION OF SUBORDINATES. The judgment gives the caveat that a superior officer must not abdicate is duty to properly supervise his subordinates for he runs the risk of being held responsible for gross negligence and of being held under the cited provision of the Civil Code as indirectly and solidarily accountable with the tortfeasor. 4. ID.; ID.; ID.; ID.; RATIONALE. The rationale for this rule of law was best expressed by Brandeis in this wise: "In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means . . . . would bring terrible retribution."

FIRST DIVISION [G.R. No. L-22554. August 29, 1975.]

DELFIN LIM and JIKIL TAHA, plaintiffs-appellants, vs. FRANCISCO PONCE DE LEON AND ORLANDO MADDELA, defendants-appellees.

Ricardo L. Manalilig for plaintiffs-appellants. Iigo R. Pea for defendants-appellees.

SYNOPSIS

A complaint was filed against Jikil Taha alleging that a year after he sold his motor launch, he forcibly took the same. After the preliminary investigation, Fiscal Ponce de Leon filed an information for robbery with force and intimidation upon person and directed the Provincial Commander of Palawan to impound the motor launch subject of the criminal offense. The Provincial Commander in turn directed Detachment Commander Orlando Maddela to seize the motor launch from Delfin Lim, a subsequent vendee. Jikil Taha and Delfin Lim filed a complaint for damages against Fiscal Ponce de Leon and Orlando Maddela alleging, among others, that the motor launch was seized without a search warrant. The trial court upheld the validity of the seizure and ordered plaintiffs to pay jointly and severally actual and exemplary damages plus attorney's fees. Hence, this appeal. The Supreme Court reversed the ruling holding that the seizure without a warrant was illegal and violative of the constitutional provision against unreasonable searches and seizure even if the thing seized was the corpus delicti of a crime; and ordered fiscal Ponce de Leon to pay Delfin Lim actual and moral damages plus attorney's fees. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE; REQUISITES OF A VALID SEARCH WARRANT. A search and seizure to be reasonable, must be effected by means of a valid search warrant. And for a search warrant to be valid: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause , the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. 2. ID.; ID.; ID.; SECTIONS 2 and 3 OF RULE 122, RULES OF COURT. Under Section 2 and 3 of Rule 122 of the Rules of Court which complement the constitutional provision on unreasonable search and seizure, two principles are made clear, namely: (1) that in the seizure of a stolen property search warrant is still necessary; and (2) that in issuing a search warrant, the judge alone determines whether or not there is a probable cause. The fact that a thing is a corpus delicti of a crime does not justify its seizure without a warrant 3. ID.; ID.; ID.; CASE AT BAR. Where entrance into the premises and impounding of the motor launch were effected without a valid search warrant and without the consent of the owner, said seizure is illegal and violative of the constitutional rights against unreasonable search and seizure, for no public official has the right to enter the premises of another without his consent for the purpose of search and seizure. 4. ID.; ID.; ID.; FISCAL MAY NOT ISSUE SEARCH WARRANT. Under the 1935 Constitution the power to issue a search warrant is vested in a judge or magistrate and in no other officer and no search and seizure can be made without a proper warrant. There is nothing in Republic Act No. 732, which amended Section 1674 and 1687 of the Revised Administrative Code, which confers upon the provincial fiscals the authority to issue warrants, much less to order without warrant the seizure of a personal property even if it is the corpus delicti of a crime. Although Republic Act No. 732 has broadened the power of provincial fiscals to conduct preliminary investigation, said law did not divest the judge or magistrate of the power to determine, before the corresponding warrant, whether or not probable cause exists therefor.

5. ID.; ID.; ID.; LACK OF TIMES DOES JUSTIFY UNREASONABLE SEARCH AND SEIZURE. Where there is sufficient time to procure a search warrant and there is no basis for the apprehension that the object of search and seizure might be moved out of place, lack of time cannot justify a search without a search warrant. 6. ID.; ID.; ID.; LEGALITY OF SEIZURE MUST BE RAISED BY ONE WHOSE RIGHTS HAVE BEEN IMPAIRED. The legality of seizure can be contested only by the party whose rights have been impaired thereby, and the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. Consequently, one who is not the owner, lessees, or lawful occupant of the premises searched cannot raise the question of validity of the search and seizure. 7. DAMAGES; AWARD OF ACTUAL AND MORAL DAMAGES FOR VIOLATION OF CONSTITUTIONAL RIGHT. Under Article 32 and 2219 of the New Civil Code, a person whose constitutional rights have been violated or impaired is entitled to actual and moral damages from the public officer or employee responsible therefore. In addition, exemplary damages may also be awarded. 8. ID.; ID.; MALICE AND BAD FAITH, NOT REQUIRED TO BE LIABLE UNDER ARTICLE 32 NEW CIVIL CODE. To be liable under Article 32 of the New Civil Code it is enough that there is a violation of the constitutional rights of the plaintiffs and it is not required that defendants should have acted with malice or bad faith. 9. ID.; ID.; REASONS. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of Article 32 of the Civil Code is to put an end to official abuse by the plea of good faith. 10. ID.; SUBORDINATE OFFICER MAY BE HELD LIABLE FOR EXECUTING UNLAWFUL ORDER; EXCEPTION. While a subordinate officer may be held liable for executing an unlawful order of his superior officer, there are certain circumstances which would warrant exculpation from liability. Thus, where it is shown that the motor launch was impounded by a subordinate officer only after repeated request by the fiscal, after being shown a letter justifying the necessity of seizure, and after he was made to explain the delay of the seizure by his superior, he cannot be held liable for damages.

SECOND DIVISION [G.R. No. 86720. September 2, 1994.]

MHP GARMENTS, INC., and LARRY C. DE GUZMAN, petitioners, vs. THE HONORABLE COURT OF APPEALS, AGNES VILLA CRUZ, MIRASOL, LUGATIMAN, and GERTRUDES GONZALES, respondents.

In the case of Lim vs. Ponce de Leon, 9 we ruled for the recovery of damages for violation of constitutional rights and liberties from public officer or private individual, thus: "ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages. "xxx "(9) "xxx xxx xxx

The rights to be secure in one's person, house, papers, and effects against unreasonable searches and seizures. xxx xxx

"The indemnity shall include moral damages. Exemplary damages may also be adjudged."

"ART. 2219. "xxx "(6) "(1)

Moral damages may be recovered in the following and analogous cases: xxx xxx

Illegal search;. Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

Pursuant to the foregoing provisions, a person whose constitutional rights have been violated or impaired is entitled to actual and moral damages from the public officer or employee responsible therefor. In addition, exemplary damages may also be awarded." xxx xxx xxx

"The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by plea of the good faith. In the United States this remedy is in the nature of a tort." (emphasis supplied) CITIZENSHIP EN BANC [G.R. No. 161434. March 3, 2004.] MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents. The Citizenship Issue Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship. Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office. 6 Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a self-sufficient existence. 7 The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other. 8 In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society. The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice. 9 Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power. 10 The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security. 11 The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship. 12 The Local Setting from Spanish Time to the Present There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects." 13 In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees. 14

Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts; 15 however, three royal decrees were undisputably made applicable to Spaniards in the Philippines the Order de la Regencia of 14 August 1841, 16 the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands, 17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870. 18 The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramar among which this country was included, would be governed by special laws. 19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. "(a) "(b) "(c) "(d) Persons born in Spanish territory, Children of a Spanish father or mother, even if they were born outside of Spain, Foreigners who have obtained naturalization papers, Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy." 20

The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact. The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States. 21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside. Thus "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." 22 Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States. LibLex The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines ". . . that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the

Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight." 23 Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899. 24 Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period. 25 More about this later. In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein." 26 With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 "That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein." Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country. While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship "Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines "(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution

"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. "(3) "(4) "(5) Those whose fathers or mothers are citizens of the Philippines. Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship. Those who are naturalized in accordance with law."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns "Section 1, Article III, 1973 Constitution The following are citizens of the Philippines: "(1) "(2) "(3) five. "(4) Those who are citizens of the Philippines at the time of the adoption of this Constitution. Those whose fathers or mothers are citizens of the Philippines. Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-

Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that "A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship." The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution. Section I, Article IV, 1987 Constitution now provides: "The following are citizens of the Philippines: "(1) "(2) Those who are citizens of the Philippines at the time of the adoption of this Constitution. Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and "(4) Those who are naturalized in accordance with law."

The Case Of FPJ Section 2, Article VII, of the 1987 Constitution expresses: "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election." The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." 27 The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship naturalization, jus soli, res judicata and jus sanguinis 28 had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs 29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in

Tan Chong vs. Secretary of Labor 30 (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that 1. 2. 3. 4. 5. The parents of FPJ were Allan F. Poe and Bessie Kelley; FPJ was born to them on 20 August 1939; Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; The father of Allan F. Poe was Lorenzo Poe; and At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals. Section 3, Rule 130, Rules of Court states that "Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: xxx "(d) xxx xxx

When the original is a public record in the custody of a public office or is recorded in a public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides: "Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated."

The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred. 31 The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902. Proof of Paternity and Filiation Under Civil Law. Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used. Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document. 32 Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that "In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified." In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition. 33 In Mendoza vs. Mella, 34 the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own." In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja, 35 this Court defined what could constitute such a document as proof of voluntary acknowledgment: "Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class." Let us leave it at that for the moment. The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in

any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his. The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide: "Art. 172.The filiation of legitimate children is established by any of the following: "(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. "In the absence of the foregoing evidence, the legitimate filiation shall be proved by: "(1) "(2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

"Art. 173.The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. "The action already commenced by the child shall survive notwithstanding the death of either or both the parties. "xxx xxx xxx

"Art. 175.Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. "The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent." The provisions of the Family Code are retroactively applied; Article 256 of the code reads: "Art. 256.This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." Thus, in Vda. De SyQuia vs. Court of Appeals, 36 the Court has ruled: "We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect." It should be apparent that the growing trend to liberalize the acknowledgment of recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his

political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context or private relations, the domain of civil law; particularly "Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among member of a family, and those which exist among members of a society for the protection of private interests." 37 in Yaez de Barnuevo vs. Fuster, 38 the Court has held: "In accordance with Article 9 of the Civil Code of Spain, . . . the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife." The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that "Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code, 39 Successional rights and family relations 40 In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law 41 and not his political status. Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount. These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law. The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. STcHEI Section 39, Rule 130, of the Rules of Court provides "Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word 'pedigree' includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree." For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration.

FIRST DIVISION [G.R. No. 153883. January 13, 2004.]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. CHULE Y. LIM, respondent. the Republic avers that respondent did not comply with the constitutional requirement of electing Filipino citizenship when she reached the age of majority. It cites Article IV, Section 1(3) of the 1935 Constitution, which provides that the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship. 9 Likewise, the Republic invokes the provision in Section 1 of Commonwealth Act No. 625, that legitimate children born of Filipino mothers may elect Philippine citizenship by expressing such intention "in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines." 10 Plainly, the above constitutional and statutory requirements of electing Filipino citizenship apply only to legitimate children. These do not apply in the case of respondent who was concededly an illegitimate child, considering that her Chinese father and Filipino mother were never married. As such, she was not required to comply with said constitutional and statutory requirements to become a Filipino citizen. By being an illegitimate, child of a Filipino mother, respondent automatically became a Filipino upon birth. Stated differently, she is a Filipino since birth without having to elect Filipino citizenship when she reached the age of majority. acCITS In Ching, Re: Application for Admission to the Bar, 11 citing In re Florencio Mallare, 12 we held: Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship (US. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands, 42 Phil. 543; Serra vs. Republic, L-4223, May 12, 1952; Sy Quimsuan vs. Republic, L4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be taken on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled. 13 This notwithstanding, the records show that respondent elected Filipino citizenship when she reached the age of majority. She registered as a voter in Misamis Oriental when she was 18 years old. 14 The exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. 15 In its second assignment of error, the Republic assails the Court of Appeals' decision in allowing respondent to use her father's surname despite its finding that she is illegitimate. The Republic's submission is misleading. The Court of Appeals did not allow respondent to use her father's surname. What it did allow was the correction of her father's misspelled surname which she has been using ever since she can remember. In this regard, respondent does not need a court pronouncement for her to use her father's surname. We agree with the Court of Appeals when it held: Firstly, Petitioner-appellee is now 47 years old. To bar her at this time from using her father's surname which she has used for four decades without any known objection from anybody, would only sow confusion. Concededly, one of the reasons allowed for changing one's name or surname is to avoid confusion. Secondly, under Sec. 1 of Commonwealth Act No. 142, the law regulating the use of aliases, a person is allowed to use a name "by which he has been known since childhood." Thirdly, the Supreme Court has already addressed the same issue. In Pabellar v. Rep. of the Phils., 16 we held:

Section 1 of Commonwealth Act No. 142, which regulates the use of aliases, allows a person to use a name "by which he has been known since childhood" (Lim Hok Albano v. Republic, 104 Phil. 795; People v. Uy Jui Pio, 102 Phil. 679; Republic v. Taada, infra). Even legitimate children cannot enjoin the illegitimate children of their father from using his surname (De Valencia v. Rodriguez, 84 Phil. 222). 17 While judicial authority is required for a change of name or surname, 18 there is no such requirement for the continued use of a surname which a person has already been using since childhood. 19 The doctrine that disallows such change of name as would give the false impression of family relationship remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to the community in general. 20 In this case, the Republic has not shown that the Yu family in China would probably be prejudiced or be the object of future mischief. In respondent's case, the change in the surname that she has been using for 40 years would even avoid confusion to her community in general. EN BANC [G.R. No. 120295. June 28, 1996.]

JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents. SYLLABUS

1. POLITICAL LAW; LOCAL GOVERNMENT CODE OF 1991; ELECTION; WHEN THE PRESCRIBED QUALIFICATION SHALL BE POSSESSED. Justice Davide departs from the view in the ponencia is that Section 39 of the Local Government Code of 1991 does not specify the time when the citizenship requirement must be met, and that being the case, then it suffices that citizenship be possessed upon commencement of the term of the office involved. Section 39 actually prescribes the qualifications of elective local officials and not those of an elected local official. These adjectives are not synonymous, as the ponencia seems to suggest, the first refers to the nature of the office, which requires the process of voting by the electorate involved; while the second refers to a victorious candidate for an elective office. The section unquestionably refers to elective not elected local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof begins with the phrases "An elective local official," while paragraphs (b) to (f) thereof speak of candidates. It is thus obvious that Section 39 refers to no other than the qualifications of candidates for elective local offices and their election. Hence, in no way may the section be construed to mean that possession of qualifications should be reckoned from the commencement of the term of office of the elected candidate. It is not at all true that Section 39 does not specify the time when the citizenship requirement must be possessed. I submit that the requirement must be satisfied, or that Philippine citizenship must be possessed, not merely at the commencement of the term, but at an earlier time, the latest being election day itself. Section 39 is not at all ambiguous nor uncertain that it meant this to be, as one basic qualification of an elective local official is that he be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he possesses all the qualifications to exercise the right of suffrage. The fundamental qualification for the exercise of this sovereign right is the possession of Philippine citizenship. No less than the Constitution makes it the first qualification. 2. ID.; ID.; ID.; AVAILABLE REMEDIES ON QUESTIONS OF INELIGIBILITY FOR PUBLIC OFFICE. Quo warranto is not the sole remedy available to question a candidate's ineligibility for public office. Section 78 of the Omnibus Election Code allows the filing of a petition to deny due course to or cancel the certificate of candidacy on the ground that any material representation contained therein as required by Section 74, is false. Section 74, in turn, requires that the person filing the certificate of candidacy must state inter alia, that he is eligible for the office, which means that he has all the qualifications (including, of course, fulfilling the citizenship requirement) and none of the disqualifications as provided by law. The petitioner under Section 78 may be filed at any time not later than 25 days from the filing of the certificate of candidacy. Rule 25 of the Revised COMELEC rules of procedure allows the filing of a petition for disqualification on the ground of failure to possess all the qualifications of a candidate as provided by the Constitution or by existing laws, "any day after the last day for filing of certificates of candidacy but not later than the date of proclamation."

3. ID.; CITIZENSHIP; STEPS FOR THE REACQUISITION OF CITIZENSHIP BY REPATRIATION. The steps to reacquire Philippine Citizenship by repatriation under P.D. No. 725 are: (1) filing the application; (2) action by the committee; and (3) taking of the oath of allegiance if the application is approved. It is only UPON TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have reacquired Philippine citizenship. If the decree had intended the oath taking to retroact to the date of the filing of the application, then it should not have explicitly provided otherwise. 4. ID.; INTERNATIONAL LAW; STATELESSNESS, CONSTRUED. Statelessness may be either de jure, which is the status of individuals stripped of their nationality by their former government without having all opportunity to acquired another; or de facto, which is the status of individuals possessed of a nationality whose country does not give them protection outside their own country, and who are commonly, albeit imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases, Materials and Comments, 1995, ed., 290). Under Chapter I, Article 1 of the United Nations Convention Regarding the Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated by Haydee B. Yorac, vol. III, 363), a stateless person is defined as "a person who is not considered as a national by any State under the operation of its law. 5. ID.; DECLARATION OF PRINCIPLES AND STATE POLICIES; DOCTRINE OF PEOPLE'S SOVEREIGNTY, CONSTRUED. The doctrine or people's sovereignty is founded on the principles of democracy and republicanism and refers exclusively to the sovereignty of the people of the Philippines. Section 1 of Article II of the 1987 Constitution is quite clear on this. And the Preamble makes it clear when it solemnly opens it with a clause "We, the sovereign Filipino people. . . " Thus, the sovereignty is an attribute of the Filipino people as one people, one body. That sovereign power of the Filipino people cannot be fragmentized by looking at it as the supreme authority of the people of any of the political subdivisions to determine their own destiny; neither can we convert and treat every fragment as the whole. In such a case, this Court would provide the formula for the division and destruction of the State and render the Government ineffective and inutile. PUNO, J. Concurring Opinion: 1. POLITICAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES; SOVEREIGNTY OF THE PEOPLE, CONSTRUED. The sovereignty of our people is the primary postulate of the 1987 Constitution. For this reason, it appears as the first of principles and state policies. Thus, Section 1 of Article II of our fundamental law proclaims that [t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." The same principle served as the bedrock of our 1973 and 1935 Constitutions. [The 1987 Constitution added the word "democratic" in the statement of the principle.] It is one of the few principles whose truth has been cherished by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a duty of the Federal government to guarantee to every state a "republican form of government." With understandable fervor, the American authorities imposed republicanism as the cornerstone of our 1935 Constitution then being crafted by its Filipino farmers. Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-oriented. Thus, Section 4 of Article II provides as a state policy that the prime duty of the Government is "to serve and protect the people." Section 1, Article XI also provides that . . . public officer . . . must at all times be accountable to the people . . . " Sections 15 and 16 of Article XIII define the role and rights of people's organizations. Section 5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty." And Section 2 of Article XVII provides that "amendments to this Constitution may likewise be directly proposed by the people through initiative . . ." All these provisions and more are intended to breathe more life to the sovereignty of our people. To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions are buried in mysticism. Its metes and bounds are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is meant to be supreme, the just summi imperu, the absolute right to govern. Former Dean Vicente Sinco states that an essential quality of sovereignty is legal omnipotence, viz: "Legal theory establishes certain essential qualities inherent in the nature of sovereignty. The first is legal omnipotence. This means that the sovereign is legally omnipotent and absolute in relation to other legal institutions. It has the power to determine exclusively its legal competence. Its powers are original, not derivative. It is the sole judge of what it should do at any given time." Citing Barker, Principles of Social and Political Theory, p. 59 (1952 ed.), he adds that a more amplified definition of sovereignty is that of "a final power of final legal adjustment of all legal issues." The U.S. Supreme Court expressed the same thought in the landmark case of Yick Wo v. Hopkins, 118 U.S. 356, where it held that ". . . sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts." 2. ID.; ID.; REPRESENTATIVE DEMOCRACY DISTINGUISHED FROM PURE DEMOCRACY. In our Constitution, the people established a representative democracy as distinguished from a pure democracy. Justice Isagani Cruz explains ". . . A republic is a representative government, a government run by and for the people. It is not a pure democracy where the people govern themselves directly. The essence of republicanism is representation and renovation, the selection by the citizenry of a corps of public functionaries who derive their mandate for the people and act on their behalf, serving for a limited period only, after which they are replaced or retained, at the option of their principal. Obviously, a republican government is a responsible government whose officials hold and discharge their position as a public trust and shall, according to the

Constitution, 'at all times be accountable to the people' they are sworn to serve. The purpose of a republican government it is almost needless to state, is the promotion of the common welfare according to the will of the people themselves." 3. ID.; ELECTION CASES; THE COURT SHOULD STRIVE TO ALIGN THE WILL OF THE LEGISLATURE WITH THE WILL OF THE SOVEREIGN PEOPLE. In election cases, we should strive to align the will of the legislature as expressed in its law with the will of the sovereign people as expressed in their ballots. For law to reign, it must respect the will of the people. For in the eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty and is the ultimate source of established authority." (Moya v. del Fierro, 69 Phil. 199) The choice of the governed on who shall be their governor merits the highest consideration by all agencies of government. In cases where the sovereignty of the people is at stake, we must not only be legally right but also politically correct. We cannot fail by making the people succeed. PANGANIBAN, J.: 1. POLITICAL LAW; CITIZENSHIP; QUALIFICATION REQUIRED FOR ALL ELECTIVE LOCAL OFFICIALS. The Local Government Code of 1991 [Republic Act No. 7160] expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor. Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. The law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being, a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern. i.e., the law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration not the actual voting is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern and not anywhere else. 2. ID.; ID.; MANNERS OF REACQUISITION UNDER PHILIPPINE LAWS. Under Philippine law, citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. 3. ID.; ID.; REPATRIATION; REQUIREMENTS THEREOF ARE LESS TEDIOUS AND CUMBERSOME COMPARED TO NATURALIZATION. The requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 725 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the special committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. 4. ID.; ID.; THE LOCAL GOVERNMENT CODE DOES NOT SPECIFY WHEN SUCH QUALIFICATION SHALL BE POSSESSED. Under Sec. 39 of the Local Government Code, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceeding the day of election) and age (at least twenty three years of age on election day). Even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of 'ELECTIVE OFFICIALS', not of candidates. Liberally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term. Section 39, par. (a) (thereof) speaks of "elective local official" while par. (b) to (f) refer to "candidates." The citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. 5. STATUTORY CONSTRUCTION; REPEAL OF LAW; BY SUBSEQUENT ONES. Laws are, repealed only by subsequent ones [Art. 7, Civil Code of the Philippines] and a repeal may be express or implied. 6. ID.; ID.; BY IMPLICATION IS NOT FAVORED; EXCEPTION. It is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist".

7. ID.; THE LAW PRESUMES THAT THE LAW MAKING-BODY INTENDED RIGHT AND JUSTICE TO PREVAIL. In case of doubt in the interpretation or application of laws, it is to be presumed that the lawmaking body intended right and justice to prevail. [Art. 10, Civil Code of the Philippines) 8. CIVIL LAW; RETROSPECTIVE OPERATIONS OF STATUTES; WHEN EFFECTIVE. It is true that under Art. 4 of the Civil Code of the Philippines, "(l)aws shall have no retroactive effect, unless the contrary is provided." But there are settled exceptions to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS. According to TOLENTINO, curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo, [Agpalo, Statutory Construction, 1990 ed., pp. 270-271] on the other hand, says that curative statutes are "healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended." On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes. 9. POLITICAL LAW; OMNIBUS ELECTION CODE; PROVIDED REMEDY TO QUESTION INELIGIBILITY OF A CANDIDATE. Section 253 of the Omnibus Election Code gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidates. This is the only provision of the Code that authorizes a remedy on how to contest before the COMELEC an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. 10. ID.; ELECTIONS; THE RULE IS THE INELIGIBILITY OF A CANDIDATE RECEIVING MAJORITY VOTES DOES NOT ENTITLE THE ELIGIBLE CANDIDATE RECEIVING THE NEXT HIGHEST NUMBER OF VOTES TO BE DECLARED ELECTED. "The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office." 11. ID.; ID.; ELECTORAL LAWS SHOULD BE LIBERALLY AND EQUITABLY CONSTRUED TO GIVE FULLEST EFFECT TO THE MANIFEST WILL OF OUR PEOPLE. This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: . . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections." In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. The real essence of justice does not emanate from quibbling over patchwork legal technicality. It proceeds form the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. 12. ID.; INTERNATIONAL LAW; A STATE DETERMINES ONLY THOSE WHO ARE ITS OWN CITIZENS NOT WHO ARE THE CITIZENS OF OTHER COUNTRIES. Since our courts are charged only with the duty of the determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens not who are the citizens of other countries.

EN BANC [G.R. No. 142840. May 7, 2001.]

ANTONIO BENGSON III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.

The 1987 Constitution enumerates who are Filipino citizens as follows: (1) (2) Those who are citizens of the Philippines at the time of the adoption of this Constitution; Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority, and (4) Those who are naturalized in accordance with law. 8

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof. 9 As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship." 10 On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. 11 To be naturalized, an applicant has to prove that he possesses all the qualifications 12 and none of the disqualifications 13 provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies. 14 Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law. Commonwealth Act No. 63 (CA No. 63), enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. 15 Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is governed by Commonwealth Act No. 63. 16 Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications 17 and none of the disqualifications mentioned in Section 4 of C.A. 473. 18 Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces; 19 (2) service in the armed forces of the allied forces in World War II; 20 (3) service in the Armed Forces of the United States at any other time; 21 (4) marriage of a Filipino woman to an alien; 22 and (5) political and economic necessity. 23 As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. aSECAD

In Angara v. Republic, 24 we held: . . .. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he had last resided in the Philippines. [Emphasis in the original.] 25 Moreover, repatriation results in the recovery of the original nationality. 26 This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a naturalborn citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. However, he subsequently reacquired Philippine citizenship under RA. No. 2630, which provides: SECTION 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship. Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father. 27 It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship. Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. As correctly explained by the BET in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows: SECTION 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen from birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship. Under the 1973 Constitution definition, there were two categories of, Filipino citizens which were not considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973, 28 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously because they were not Filipinos at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the effectivity of the 1973 Constitution were likewise not considered natural-born because they also had to perform an act to perfect their Philippine citizenship. The present Constitution, however, now considers those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who are natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-born citizens. It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be naturalborn or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives. A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House. 29 The Court's jurisdiction over the HRET is merely to check "whether

or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter. 30 In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to substitute the Court's judgment for that of the latter for the simple reason that it is not the office of a petition for certiorari to inquire into the correctness of the assailed decision. 31 There is no such showing of grave abuse of discretion in this case.

GAUDENCIO M. CORDORA, Petitioner, G.R. No. 176947

Tambuntings Dual Citizenship

Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his fathers citizenship. Tambunting claims that because of his parents differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized American citizen.

We agree with Commissioner Sarmientos observation that Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is an American. However, the same certification showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public office. lxxxii[7]

Requirements for dual citizens from birth who desire to run for public office

We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that dual citizenship is not a ground for disqualification from running for any elective local position.

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously

considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. xxx [I]n including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: [D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control. We have to consider the present case in consonance with our rulings in Mercado v. Manzano,lxxxiii[9] Valles v. COMELEC, lxxxiv[10] and AASJS v. Datumanong.lxxxv[11] Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individuals active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizens foreign citizenship.

R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows:

I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.

In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. lxxxvi[12] Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constit ution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath aside from the oath of allegiance prescri bed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC,lxxxvii[13] Velasco v. COMELEC,lxxxviii[14] and Japzon v. COMELEC,lxxxix[15] all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him. SUFFRAGE EN BANC [G.R. No. 147066. March 26, 2001.]

AKBAYAN Youth, SCAP, UCSC, MASP, KOMPIL II Youth, ALYANSA, KALIPI, PATRICIA O. PICAR, MYLA GAIL Z. TAMONDONG, EMMANUEL E. OMBAO, JOHNNY ACOSTA, ARCHIE JOHN TALAUE, RYAN DAPITAN, CHRISTOPHER OARDE, JOSE MARI MODESTO, RICHARD M. VALENCIA, EDBEN TABUCOL, petitioners, vs. COMMISSION ON ELECTIONS, respondent. On this particular matter, grave abuse of discretion implies a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of laws. 19 Under these circumstances, we rule that the COMELEC, in denying the request of petitioners to hold a special registration, acted within the bounds and confines of the applicable law on the matter Section 8 of RA 8189. In issuing the assailed Resolution, respondent COMELEC simply performed its constitutional task to enforce and administer all laws and regulations relative to the conduct of an election, 20 inter alia, questions relating to the registration of voters; evidently, respondent COMELEC merely exercised a prerogative that chiefly pertains to it and one which squarely falls within the proper sphere of its constitutionallymandated powers. Hence, whatever action respondent takes in the exercise of its wide latitude of discretion, specifically on matters involving voters registration, pertains to the wisdom rather than the legality of the act. Accordingly, in the absen ce of clear showing of grave abuse of power of discretion on the part of respondent COMELEC, this Court may not validly conduct an incursion and meddle with affairs exclusively within the province of respondent COMELEC a body accorded by no less than the fundamental law with independence. G.R. No. 189868. December 1, 2009]

KABATAAN PARTY-LIST REPRESENTATIVE RAYMOND V. PALATINO, ALVIN A. PETERS, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP), MA. CRISTINA ANGELA GUEVARRA,

CHAIRPERSON OF THE STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP), VENCER MARI E. CRISOSTOMO, SECRETARY GENERAL OF KABATAAN PARTY-LIST, VIJAE O. ALQUISOLA, PRESIDENT OF THE COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP), DIANNE KRISTEL M. ASUELO, SECRETARY GENERAL OF THE KABATAANG ARTISTA PARA SA TUNAY NA KALAYAAN (KARATULA), KENNETH CARLISLE EARL EUGENIO, ANA KATRINA V. TEJERO, VICTOR LOUIS E. CRISOSTOMO, JACQUELINE ALEXIS S. MERCED, and JADE CHARMANE ROSE J. VALENZUELA, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. ARTICLE SUFFRAGE V

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage. SECTION 2. The Congress shall provide a system of securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. Preserving the sanctity of the right of suffrage ensures that the State derives its power from the consent of the governed. The paramount importance of this right is also a function of the State policy of people empowerment articulated in the constitutional declaration that sovereignty resides in the people and all government authority emanates from them,[7] bolstered by the recognition of the vital role of the youth in nation-building and directive to the State to encourage their involvement in public and civic affairs.[8] It is against this backdrop that Congress mandated a system of continuing voter registration in Section 8 of RA 8189 which provides: Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. (emphasis and underscoring supplied) The clear text of the law thus decrees that voters be allowed to register daily during regular offices hours, except during the period starting 120 days before a regular election and 90 days before a special election. By the above provision, Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections including: (1) completion of project precincts, which is necessary for the proper allocation of official ballots, election returns and other election forms and paraphernalia; (2) constitution of the Board of Election Inspectors, including the determination of the precincts to which they shall be assigned; (3) finalizing the Computerized Voters List; (4) supervision of the campaign period; and (5) preparation, bidding, printing and distribution of Voters Information Sheet. Such determination of Congress is well within the ambit of its legislative power, which this Court is bound to respect. And the COMELECs rule-making power should be exercised in accordance with the prevailing law .[9] Respecting the authority of the COMELEC under RA 6646 and RA 8436 to fix other dates for pre-election acts, the same is not in conflict with the mandate of continuing voter registration under RA 8189. This Courts primary duty is to harmonize laws rather than consider one as repealed by the other. The presumption is against inconsistency or repugnance and, accordingly, against implied repeal. For Congress is presumed to know the existing laws on the subject and not to enact inconsistent or conflicting statutes.[10] Both R.A. No. 6646, Section 29 and R.A. No. 8436, Section 28 grant the COMELEC the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law . This grant of power, however, is for the purpose of enabling the people to exercise the right of suffrage the common underlying policy of RA 8189, RA 6646 and RA 8436.

In the present case, the Court finds no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by RA 8189, Sec. 8 daily during office hours, except during the period starting 120 days before the May 10, 2010 regular elections. There is thus no occasion for the COMELEC to exercise its power to fix other dates or deadlines therefor. The present case differs significantly from Akbayan-Youth v. COMELEC.[11] In said case, the Court held that the COMELEC did not commit abuse of discretion in denying the request of the therein petitioners for an extension of the December 27, 2000 deadline of voter registration for the May 14, 2001 elections. For the therein petitioners filed their petition with the Courtwithin the 120-day prohibitive period for the conduct of voter registration under Section 8 of RA 8189, and sought the conduct of a twoday registration on February 17 and 18, 2001,clearly within the 120-day prohibitive period. The Court in fact suggested in Akbayan-Youth that the therein petitioners could have, but had not, registered during the period between the December 27, 2000 deadline set by the COMELEC and before the start of the 120-day prohibitive period prior to the election date or January 13, 2001, thus: [T]here is no allegation in the two consolidated petitions and the records are bereft of any showing that anyone of herein petitioners has filed an application to be registered as a voter which was denied by the COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she proceeded to the Office of the Election Officer to register between the period starting from December 28, 2000 to January 13, 2001, and that he or she was disallowed or barred by respondent COMELEC from filing his application for registration. While it may be true that respondent COMELEC set the registration deadline on December 27, 2000, this Court is of the firm view thatpetitioners were not totally denied the opportunity to avail of the continuing registration under R.A. 8189.[12] (emphasis and underscoring supplied) The clear import of the Courts pronouncement in Akbayan -Youth is that had the therein petitioners filed their petition and sought an extension date that was before the 120-day prohibitive period, their prayer would have been granted pursuant to the mandate of RA 8189. In the present case, as reflected earlier, both the dates of filing of the petition (October 30, 2009) and the extension sought (until January 9, 2010) are prior to the 120-day prohibitive period. The Court, therefore, finds no legal impediment to the extension prayed for. WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is declared null and void

i[71]

Rule on the Writ of Amparo: The Rationale for the Writ of Amparo, p. 43. Id. Rule on the Writ of Amparo: Annotation, p. 47. iv[74] Id. Article VIII, 5(5) of the 1987 Constitution provides for this rule-making power, viz: Sec. 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights v[75] Rule on the Writ of Amparo: Annotation, p. 48. This is the manner the term is used in United Nations instruments. vi[76] Rule on the Writ of Amparo: Annotation, p. 48. This is the definition used in the Declaration on the Protection of All Persons from Enforced Disappearances. vii[77] Barker, R., Constitutionalism in the Americas: A Bicentennial Perspective, 49 University of Pittsburgh Law Review ( Spring, 1988) 891, 906. viii[78] Id., citing Zamudio, F., A Brief Introduction to the Mexican Writ of Amparo, 9 California Western International Law Journal (1979) 306, 309. ix[79] At the time it adopted Rejns amparo, Yucatan had separated itself from Mexico. After a few months, the secession ended and the state resumed its place in the union. (Barker, R., supra at 906.) x[80] Acta de Reformas, art. 25 (1847) (amending Constitution of 1824). xi[81] Acta de Reformas, art. 25 (1847) (amending Constitution of 1824); CONST. of 1857, arts. 101, 102 (Mex.); CONST. art. 107 (Mex.). xii[82] Barker, R., supra at 906-907. See also Provost, R. Emergency Judicial Relief for Human Rights Violations in Canada and Argentina, University of Miami Inter-American Law Review (Spring/Summer, 1992) 693, 701-702. xiii[83] Rule on the Writ of Amparo: Annotation, p. 45. See Article 107 of the Constitution of Mexico; Article 28(15) of the Constitution of Ecuador; Article 77 of the Constitution of Paraguay; Article 43 of the Constitution of Argentina; Article 49 of the Constitution of Venezuela; Article 48 (3) of the Constitution of Costa Rica; and Article 19 of the Constitution of Bolivia. xiv[84] Provost, R., supra at 698, citing Ramirez, F., The International Expansion of the Mexican Amparo, 1 Inter-American Law Review (1959) 163, 166. xv[85] Rule on the Writ of Amparo: Annotation, p. 45; see also Zagaris, B., The Amparo Process in Mexico, 6 Mexico Law Journal (Spring 1998) 61, 66 and Provost, R., supra at 708-709. xvi[86] Rule on the Writ of Amparo: Annotation, p. 45. xvii[87] Brewer-Carias, A., The Latin American Amparo Proceeding and the Writ of Amparo in the Philippines, Second Distinguished Lecture, Series of 2007, Supreme Court, Philippine Judicial Academy in coordination with the Philippine Association of Law Schools, March 7, 2008. xviii[88] See 1987 PHIL. CONST. Art. III, 13 & 15; Art. VII, 18; Art. VIII, 5(1). xix[89] 5 U.S. 137 (1803). See Gormley, K. Judicial Review in the Americas: Comments on the United States and Mexico, 45 Duquesne Law
ii[72] iii[73]

Review (Spring, 2007) 393. Rule on the Writ of Amparo: Annotation, p. 47. Deliberations of the Committee on the Revision of the Rules of Court, August 10, 2007; August 24, 2007; August 31, 2007; and September 20, 2008. xxii[92] G.R. No. 179095. xxiii[93] CA rollo, p. 3. xxiv[94] Rollo, p. 35. xxv[95] Ferancullo v. Ferancullo, Jr., A.C. No. 7214, November 30, 2006, 509 SCRA 1. xxvi[96] CA rollo, p. 210. xxvii[97] Id. xxviii[98] Id. xxix[99] Id. at 203. xxx[100] Id. at 211. xxxi[101] Rollo, pp. 74-76. xxxii[102] Id. at 40. xxxiii[103] CA rollo, pp. 219, 222-224. xxxiv[104] TSN, November 14, 2007, p. 66. xxxv[105] Case 10.526, Report No. 31/96, Inter-Am.C.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 332 (1997). xxxvi[106] Id. at par. 49. xxxvii[107] Id. xxxviii[108] Id. at par. 50. xxxix[109] Rollo, p. 182. xl[110] Id. xli[111] Id. at 183. xlii[112] Respondents cite 1987 PHIL. CONST. Art. III, 12(2) which provides, viz:
xx[90] xxi[91]

(2) No torture, force, violence threat, intimidation, or any other means which vitiate the free will shall be used against him (any person under investigation for the commission of an offense). Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. xliii[113] 225 Phil. 191 (1986). xliv[114] Rollo, pp. 182-183. xlv[115] Id. at 183. xlvi[116] Id. xlvii[117] Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (2003) 162. xlviii[118] No. L-41686, November 17, 1980, 101 SCRA 86. xlix[119] Id. at 100-101. l[120] 1987 PHIL. CONST. Art. III, 1 provides, viz: Sec. 1. No person shall be deprived of life, liberty, or property without due process of law li[121] But see Bernas, supra at 110. The constitutional protection of the right to life is not just a protection of the right to be alive or to the security of ones limb against physical harm. lii[122] Separate Opinion of Chief Justice Reynato S. Puno in Republic v. Sandiganbayan, 454 Phil. 504 (2003). liii[123] Sandifer, D. and L. Scheman, THE FOUNDATION OF FREEDOM (1966), pp. 44-45. liv[124] Schmidt, C., An International Human Right to Keep and Bear Arms, 15 William and Mary Bill of Rights Journal ( February, 2007) 983, 1004. lv[125] Id., citing Websters Seventh New Collegiate Dictionary 780 (1971). lvi[126] The U.N. Declaration on the Protection of All Persons from Enforced Disappearance also provides for the right to security under Article 2, viz: 2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life. (emphasis supplied) Various international human rights conventions and d eclarations affirm the right to security of person, including the American Convention on Human Rights; European Convention on Human Rights; African Charter; Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women; American Declaration of the Rights and Duties of Man, African Womens Protocol, and the U.N. Declaration on the Elimination of Violence against Women. lvii[127] Section 1 of the Rule on the Writ of Amparo provides, viz: Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. (emphasis supplied) lviii[128] People v. Aruta, 351 Phil. 868 (1998). lix[129] Book Two, Title Eight, Crimes against Persons, of the Revised Penal Code consists of two chapters: Chapter One Destruction of Life, and Chapter Two Physical Injuries. lx[130] (App. No.26853/04), ECtHR Judgment of July 13, 2006. lxi[131] Id. at pars.196-197. lxii[132] General Recommendation No. 19 on Violence against Women of the Committee on the Elimination of Discrimination Against Women. Adoption of the Report, U.N. Committee on the Elimination of Discrimination against Women, 11th Sess., Agenda Item 7, at para. 8, U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992); see also Lai, S. and Ralph, R., Female Sexual Autonomy and Human Rights, 8 Harvard

Human Rights Journal (Spring, 1995) 201, 207-208. 1987 PHIL. CONST. Art. II, 11, provides, viz: Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights. lxiv[134] I/A Court H.R. Velsquez Rodrguez Case, Judgment of July 29, 1988, Series C No. 4. lxv[135] Id. at par. 177. lxvi[136] Created under Article 28 of the ICCPR as the treaty-based body charged with the authoritative interpretation of the ICCPR. See RussellBrown, S., Out of the Crooked Timber of Humanity: The Conflict Between South Africas Truth and Reconciliation Commission and International Human Rights Norms Regarding Effective Remedies, 26 Hastings International and Comparative Law Review (Winte r 2003) 227. lxvii[137] The ICCPR provides in Article 9(1), viz: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (emphasis supplied) lxviii[138] Communication No. 195/1985, U. N. Doc. CCPR/C/39/D/195/1985 (1990). lxix[139] Id. at , par. 5.5. lxx[140] Communication No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993). lxxi[141] Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (1993). lxxii[142] Communication No. 542/1993, U.N. Doc. CCPR/C/53/D/542/1993 (1996). lxxiii[143] Communication No. 711/1996, U.N. Doc. CCPR/C/68/D/711/1996 (2000). lxxiv[144] Communication No. 821/1998, U.N. Doc. CCPR/C/70/D/821/1998 (2000). lxxv[145] Powell, R., The Right to Security of Person in European Court of Human Rights Jurisprudence, 6 European Human Rights Law Review (2007) 649, 652-653. lxxvi[146] Kurt v. Turkey (1999) 27 E.H.R.R. 373. lxxvii[147] Id. at pars. 122 and 123. lxxviii[148] CA rollo, p. 210. lxxix[149] Rollo, p. 182 lxxx[150] Rollo, pp. 28-29. lxxxi[151] Rollo, pp. 29-31. The directives issued by the petitioners are in line with Article 13 of the 1992 U.N. Declaration on Enforced Disappearances which states that, any person having knowledge or legitimate interest who alleges that a person has been subjected to enforced disappearance has the right to complain to a competent and independent state authority and to have that complaint promptly, thoroughly and impartially investigated by the authority.
lxiii[133]

lxxxii[7] lxxxiii[9] lxxxiv[10] lxxxv[11] lxxxvi[12] lxxxvii[13] lxxxviii[14] lxxxix[15]

See Valles v. Commission on Elections, 392 Phil. 327 (2000). 367 Phil. 132 (1999). 392 Phil. 327 (2000). G.R. No. 160869, 11 May 2007, 523 SCRA 108. Id. at 117. G.R. No. 179848, 29 November 2008. G.R. No. 180051, 24 December 2008. G.R. No. 180088, 19 January 2009.