THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs. GREGORIO PERFECTO, defendant-appellant.

G.R. No. 18463 | 1922-10-04
DECISION
MALCOLM, J.:
The important question is here squarely presented of
whether article 256 of the Spanish Penal Code, punishing
"Any person who by . . . writing, shall defame, abuse, or
insult any Minister of the Crown or other person in
authority . . ., " is still in force.
About August 20, 1920, the Secretary of the Philippine
Senate, Fernando M. Guerrero, discovered that certain
documents which constituted the records of testimony
given by witnesses in the investigation of oil companies,
had disappeared from his office. Shortly thereafter, the
Philippine Senate, having been called into special session
by the Governor-General, the Secretary of the Senate
informed that body of the lost of the documents and of the
steps taken by him to discover the guilty party. The day
following the covening of the Senate, September 7, 1920,
the newspaper La Nacion, edited by Mer. Gregorio Perfecto,
published an article reading as follows:
"Half a month has elapsed since the discovery, for the first
time, of the scandalous robbery of records which were kept
and preserved in the iron safe of the Senate, yet up to this
time there is not the slightest indication that the author or
authors of the crime will ever be discovered.
"To find them, it would not, perhaps, be necessary to go out
of the Senate itself, and the persons in charge of the
investigation of the case would not have to display great
skill in order to succeed in their undertaking, unless they
should encounter the insuperable obstacle of official
concealment.
"In that case, every investigation to be made would be but
a mere comedy and nothing more.
"After all, the perpetration of the robbery, especially under
the circumstances that have surrounded it, does not
surprise us at all.

PALISOC & SARMIENTO

"The execution of the crime was but the natural effect of

the environment of the place in which it was committed.
"How many of the present Senators can say without
remorse in their conscience and with serenity of mind, that
they do not owe their victory to electoral robbery? How
many?
"The author or authors of the robbery of the records from
the said iron safe of the Senate have, perhaps, but followed
the example of certain Senators who secured their election
through fraud and robbery."
The Philippine Senate, in its session of September 9, 1920,
adopted a resolution authorizing its committee on elections
and privileges to report as to the action which should be
taken with reference to the article published in La Nacion.
On September 15, 1920, the Senate adopted a resolution
authorizing the President of the Senate to indorse to the
Attorney-General, for his study and corresponding action,
all the papers referring to the case of the newspaper La
Nacion and its editor, Mr. Gregorio Perfecto. As a result, an
information was filed in the municipal court of the city of
Manila by an assistant city fiscal, in which the editorial in
question was set out and in which it was alleged that the
same constituted a violation of article 256 of the Penal
Code. The defendant Gregorio Perfecto was found guilty in
the municipal court and again in the Court of First Instance
of Manila.
During the course of the trial in the Court of First Instance,
after the prosecution had rested, the defense moved for the
dismissal of the case. On the subject of whether or not
article 256 of the Penal Code, under which the information
was presented, is in force, the trial judge, the Honorable
George R. Harvey, said:
"This antiquated provision was doubtless incorporated into
the Penal Code of Spain for the protection of the Ministers
of the Crown and other representatives of the King against
free speech and action by Spanish subjects. A severe
punishment was prescribed because it was doubtless
considered a much more serious offense to insult the King's
representative than to insult an ordinary individual. This
provision, with almost all the other articles of that Code,
was extended to the Philippine Islands when under the
dominion of Spain because the King's subject in the

1 | Page

Philippines might defame, abuse or insult the Ministers of

the Crown or other representatives of His Majesty. We now
have no Ministers of the Crown or other persons in
authority in the Philippines representing the King of Spain,
and said provision, with other articles of the Penal Code,
had apparently passed into "innocuous desuetude,' but the
Supreme Court of the Philippine Islands has, by a majority
decision, held that said article 256 is the law of the land today . . .

penalties prescribed by law, and to pay the costs of both

instances."

"The Helbig case is a precedent which, by the rule of stare

decisis, is binding upon this court until otherwise
determined by proper authority."

It will be noted in the first place that the trial judge

considered himself bound to follow the rule announced in
the case of United States vs. Helbig (R. G. No. 14705, 1 not
published). In that case, the accused was charged with
having said, "To hell with the President and his
proclamations, or words to that effect," in violation of
article 256 of the Penal Code. He was found guilty in a
judgment rendered by the Court of First Instance of Manila
and again on appeal to the Supreme Court, with the writer
of the instant decision dissenting on two principal grounds:
(1) That the accused was deprived of the constitutional
right of cross-examination, and (2) that article 256 of the
Spanish Penal Code is no longer in force. Subsequently, on
a motion of reconsideration, the court, being of the opinion
that the Court of first Instance had committed a prejudicial
error in depriving the accused of his right to cross-examine
a principal witness, set aside the judgment affirming the
judgment appealed from and ordered the return of the
record to the court of origin for the celebration of a new
trial. Whether such a trial was actually had, is not known,
but at least, the record in the Helbig case has never again
been elevated to this court.

In the decision rendered by the same judge, he concluded

with the following language:
"In the United States such publications are usually not
punishable as criminal offenses, and little importance is
attached to them, because they are generally the result of
political controversy and are usually regarded as more or
less colored or exaggerated. Articles of this character upon
a legislative body are not punishable under the Libel Law.
Although such publications are reprehensible, yet this court
feels some aversion to the application of the provision of
law under which this case was filed. Our Penal Code has
come to us from the Spanish regime. Article 256 of that
Code prescribes punishment for persons who use insulting
language about Ministers of the Crown or other 'authority.'
The King of Spain doubtless felt need of such protection to
his ministers and others in authority in the Philippines as
well as in Spain. Hence, the article referred to was made
applicable
here.
Notwithstanding
the
change
of
sovereignty, our Supreme Court, in a majority decision, has
held that this provision is still in force, and that one who
made an insulting remark about the President of the United
States was punishable under it. (U. S. vs. Helbig, supra.) If
it be applicable in that case, it would appear to be
applicable in this case. Hence, said article 256 must be
enforced without fear or favor, until it shall be repealed or
superseded by other legislation, or until the Supreme Court
shall otherwise determine.
"In view of the foregoing considerations, the court finds the
defendant guilty as charged in the information and under
article 256 of the Penal Code sentences him to suffer two
months and one day of arresto mayor and the accessory

PALISOC & SARMIENTO

The fifteen errors assigned by the defendant and appellant,

reenforced by an extensive brief, and eloquent oral
argument made in his own behalf and by his learned
counsel, all reduce themselves to the pertinent and decisive
question which was announced in the beginning of this
decision.

There may perchance exist some doubt as to the authority

of the decision in the Helbig case, in view of the
circumstances above described. This much, however, is
certain: The facts of the Helbig case and the case and that
case before us, which we may term the Perfecto case, are
different, for in the first case there was an oral defamation,
while in the second there is a written defamation. Not only
this, but a new point which, under the facts, could not have
been considered in the Helbig case, is in the Perfecto case,
urged upon the court. And, finally, as is apparent to all, the
appellate court is not restrained, as was the trial court, by
strict adherence to a former decision. We much prefer to
resolve the question before us unhindered by references to
the Helbig decision.

2 | Page

This is one of those cases on which a variety of opinions all

leading to the same result can be had. A majority of the
court are of the opinion that the Philippine Libel Law, Act
No. 227, has the effect of repealing so much of article 256
of the Penal Code as relates to written defamation, abuse,
or insult, and that under the information and the facts, the
defendant is neither guilty of a violation of article 256 of
the Penal Code, nor of the Libel Law. The view of the Chief
Justice is that the accused should be acquitted for those
reason that the facts alleged in the information do not
constitute a violation of article 256 of the Penal Code.
Three members of the court believe that article 256 was
abrogated completely by the change from Spanish to
America
sovereignty
over
the
Philippines
and
is
inconsistent with democratic principles of government.
Without prejudice to the right of any member of the court
to explain his position, we will discuss the two main points
just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article
256 of the Spanish Penal Code. - The Libel Law, Act No. 277,
was enacted by the Philippine Commission shortly after the
organization of this legislative body. Section 1 defines libel
as a "malicious defamation, expressed either in writing,
printing, or by signs or pictures, or the like, or public
theatrical exhibitions, tending to blacken the memory of
one who is dead or to impeach the honesty, virtue, or
reputation, or natural defects of one who is alive, and
thereby expose him to public hatred, contempt or ridicule."
Section 13 provides that "All laws and parts of laws now in
force, so far as the same way be in conflict herewith, are
hereby repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took
effect, were in conflict therewith, and that the Libel Law
abrogated certain portions of the Spanish Penal Code
cannot be gainsaid. Title X of Book II of the Penal Code,
covering the subjects of columny and insults, must have
been particularly affected by the Libel Law. Indeed, in the
early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1.
Phil., 468), the Supreme Court spoke of the Libel Law as
"reforming the preexisting Spanish law on the subject of
calumnia and injuria." Recently, specific attention was given
to the effect of the Libel Law on the provisions of the Penal
Code, dealing with calumny and insults, and it was found

PALISOC & SARMIENTO

that those provisions of the Penal Code on the subject of

calumny and insults in which the elements of writing and
publicity entered, were abrogated by the Libel Law. (People
vs. Castro [1922]. p. 842, ante.)
The Libel Law must have had the same result on other
provisions of the Penal Code, as for instance, article 256.
The facts here are that the editor of a newspaper published
an article, naturally in writing, which may have had the
tendency to impeach the honesty, virtue, or reputation of
members of the Philippine Senate, thereby possibly
exposing them to public hatred, contempt, or ridicule,
which is exacty libel, as defined by the Libel Law. Sir J. F.
Stephen is authority for the statement that a libel is
indictable when defaming a "body of persons definite and
small enough for individual members to be recognized as
such, in or by mean of anything capable of being a libel."
(Digest Of Criminal Law, art. 267.) But in the United States,
while it may be proper to prosecute criminally the author of
a libel charging a legislator with corruption, criticisms, no
matter how severe, on a legislature, are within the range of
the liberty of the press, unless the intention and effect be
seditions. (3 Wharton's Criminal Law, p. 2131.) With these
facts and legal principles in mind, recall that article 256
begins: "Any person who, by . . . writing, shall defame,
abuse, or insult any Minister of the Crown or other person
in authority," etc.
The Libel Law is a complete and comprehensive law on the
subject of libel. The well-known rule of statutory
construction is, that where the later statute clearly covers
the old subject-matter of antecedent acts, and it plainly
appears to have been the purpose of the legislature to give
expression in it to the whole law on the subject, previous
laws are held to be repealed by necessary implication. (1
Lewis' Sutherland Statutory Construction, p.465.) For
identical reasons, it is evident that Act No. 277 had the
effect of repealing article 256 of the Penal Code, or at least
so much of this article as punishes defamation, abuse, or
insults by writing.
Act No. 292 of the Philippine Commission, the Treason and
Sedition Law, may also have affected article 256, but as to
this point, it is not necessary to make a pronouncement.

3 | Page

2. Effect of the change from Spanish to American

sovereignty over the Philippines on article 256 of the
Spanish Penal Code. - Appellant's main proposition in the
lower court and again energetically pressed in the appellate
court was that article 256 of the Spanish Penal Code is not
now in force because abrogated by the change from
Spanish to American sovereignty over the Philippines and
because inconsistent with democratic principles of
government. This view was indirectly favored by the trial
judge, and as before stated, is the opinion of three
members of this court.

It cannot admit of doubt that all those provisions of the

Spanish Penal Code having to do with such subjects as
treason, lesse majeste religion and worship, rebellion,
sedition, and contempts of ministers of the crown, are no
longer in force. Our present task therefore, is a
determination of whether article 256 has met the same
fate, or, more specifically stated, whether it is in the nature
of a municipal law or a political law, and is consistent with
the Constitution and laws of the United States and the
characteristics
and
institutions
of
the
American
Government.

Article 256 is found in Chapter V of Title I of Book II

punishes the crimes of treason, crimes that endanger the
peace or independence of the state, crimes against
international law, and the crime of piracy. Title II of the
same book punishes the crimes of lese majeste, crimes
against the Cortes and its members and against the council
of ministers, crimes against the form of government, and
crimes committed on the occasion of the exercise of rights
guaranteed by the fundamental laws of the state, including
crimes against religion and worship. Title III of the same
Book, in which article 256 is found, punishes the crimes of
rebellion, sedition, assaults upon persons in authority, and
their agents, and contempts, insults, injurias, and threats
against persons in authority, and insults, injurias, and
threats against their agents and other public officers, the
last being the title to Chapter V. The first two articles in
Chapter V define and punish the offense of contempt
committed by any one who shall by word or deed defame,
abuse, insult, or threaten a minister of the crown, or any
person in authority. Then with an article condemning
challenges to fight duels intervening, comes article 256,
now being weighed in the balance. It reads as follows: "Any
person who, by word, deed, or writing, shall defame, abuse,
or insult any Minister of the Crown or other person in
authority, while engaged in the performance of official
duties, or by reason of such performance, provided that the
offensive conduct does not take place in the presence of
such minister or person or the offensive writing be not
addressed to him, shall suffer the penalty of arresto
mayor," - that is, the defamation, abuse, or insult of any
Minister of the Crown of the Monarchy of Spain (for there
could not be a Minister of the Crown in the United States of
America), or other person in authority in the Monarchy of
Spain.

It is a general principle of the public law that on acquisition

of territory the previous political relations of the ceded
region are totally abrogated. "Political" is here used to
denominate the laws regulating the relations sustained by
the inhabitants to the sovereign. (American Insurance Co.
vs. Canter [1828], 1 Pet., 511 Chicago, Rock Island and
Pacific Railway Co. vs. McGlinn [1885], 144 U. S., 542; Roa
vs. Collector of Customs [1912], 23 Phil., 315.) Mr. Justice
Field of the United States Supreme Court stated the
obvious when in the course of his opinion in the case of
Chicago, Rock Island and Pacific Railway Co. vs. McGlinn,
supra, he said: "As a matter of course, all laws, ordinances
and regulations in conflict with the political character,
institutions and Constitution of the new government are
once displaced. Thus, upon a cession of political jurisdiction
and legislative power - and the latter is involved in the
former - to the United States, the laws of the country in
support of an established religion or abridging the freedom
of the press, or authorizing cruel and unusual punishments,
and the like, would at once cease to be of obligatory force
without any declaration to that effect." To quote again from
the United States Supreme Court: "It cannot be admitted
that the King of Spain could by treaty or otherwise, impart
to the United States any of his royal prerogatives; and
much less can it be admitted that they have capacity to
receive or power to exercise them. Every nation acquiring
territory by treaty or otherwise, must hold it subject to the
Constitution and laws of its own government, and not
according to those of the government, and not according to
those of the government ceding it." (Pollard vs. Hagan
[1845], 3 How., 210.)

PALISOC & SARMIENTO

On American occupation of the Philippines, by instructions

of the President to the Ministry Commander dated May 28,
1898, and by proclamation of the latter, the municipal laws

4 | Page

of the conquered territory affecting private rights of person

and property and providing for the punishment of crime
were nominally continued in force in so far as they were
compatible with the new order of things. But President
Mckinley, in his instructions to General Meritt, was careful
to say: "The first effect of the military occupation of the
enemy's territory is the severance of the former political
relation of the inhabitants and the establishment of a new
political power." From that day to this, the Spanish codes,
as codes, have been constantly applied, and ordinarily it
has been taken for granted that the provisions under
consideration were still effective. To paraphrase the
language of the United States Supreme Court in Weems vs.
United States ([1910], 217 U. S., 349), there was not and
could not be, except as precise questions were presented, a
careful consideration of the codal provisions and a
determination of the extent to which they accorded with or
were repugnant to the "'great principles of liberty and law'
which had been 'made the basis of our governmental
system.'" But when the question has been squarely raised,
the appellate court has been forced on occasion to hold
certain portions of the Spanish codes repugnant to
democratic
institutions
and
American
constitutional
principles. (U. S vs. Sweet [1901], 1 Phil., 18; U. S. vs.
Balcorta [1913], 25 Phil., 273; U. S. vs. Smith [1919], 39
Phil., 533; Weems vs. U. S., supra.)
The nature of the government which has been set up in the
Philippines under American sovereignty was outlined by
President McKinley in that Magna Charta of Philippine
liberty, his instructions to the Commission, of April 7, 1900.
In part, the President said:
"In all the forms of government and administrative
provisions which they are authorized to prescribed, the
Commissions which they are authorized to prescribe, the
Commissions should bear in mind that the government
which they are establishing is designed not for our
satisfaction or for the expression of our theoretical views,
but for the happiness, peace, and prosperity of the people
of the Philippine Islands, and the measures adopted should
be made to conform to their customs, their habits, and even
their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and
effective government. At the same time Commission should
bear in mind, and the people of the Islands should be made
plainly to understand, that there are certain great

PALISOC & SARMIENTO

principles of government which have been made the basis

of our governmental system which we deem essential to the
rule of law and the maintenance of individual freedom, and
of which they have, unfortunately, been denied the
experience possessed by us; that there are also certain
practical rules of government which we have found to be
essential to the preservation of these great principles of
liberty and law, and that these principles and these rules of
government must be established and maintained in their
islands for the sake of their liberty and happiness, however
much they may conflict with the customs or laws of
procedure with which they are familiar. It is evident that the
most enlightened thought of the Philippine Islands fully
appreciates the importance of these principles and rules,
and they will inevitably within a short time command
universal assent."
The courts have naturally taken the same view. Mr. Justice
Elliot, speaking for our Supreme Court, in the case of United
States vs. Bull ([1910], 15 Phil., 7), said: "The President and
Congress framed the government on the model with which
Americans are familiar, and which has proven best adapted
for the advancement of the public interest and the
protection of individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear
the statement made that the happiness, peace, and
prosperity of the people of the Philippine Islands and their
customs , habits, and prejudices, to follow the language of
President McKinley, demand obeisance to authority, and
royal protection for that authority.
According to our view, article 256 of the Spanish Penal Code
was enacted by the Government of Spain to protect Spanish
officials who were the representatives of the king. With the
chance of sovereignty, a new government, and a new
theory of government, was set up in the Philippines. It was
in no sense a continuation of the old, though merely for
convenience certain of the existing institutions and laws
were continued. The demands which the new government
made, and makes, on the individual citizen are likewise
different. No longer is there a Minister of the Crown or a
person in authority of such exalted position that the citizen
must speak of him only with bated breath. "In the eye of
our Constitution and laws, every man is a sovereign, a ruler
and a freedom, and has equal rights with every other man.
We have no rank or station, except that of respectability

5 | Page

and intelligence as opposed to indecency and ignorance,

and the door to this rank stands open to every man to
freely enter and abide therein, if he is qualified, and
whether he is qualified or not depends upon the life and
character and attainments and conduct of each person for
himself. Every man may lawfully do what he will, so long as
it is not malum in se or malum prohibitum or does not
infringe upon the equally sacred rights of others." (State
vs. shepherd [1903], 177 mo., 99 A. S R., 624.)
It is true that in England, from which so many of the laws
and institutions of the United States are derived, there
were once statues of scandalum, under which words which
would not be actionable if spoken of an ordinary subject
were made actionable if spoken of a peer of the realm or of
any of the great officers of the Crown, without proof of any
special damage. The Crow of England, unfortunately, took a
view less tolerant than that of other sovereigns, as for
instance, the Emperors Augustus, Ceasar, and Tiberius.
These English statues have, however, long since, become
obsolete, while in the United States, the offense of
scandalum magnatum is not known. In the early days of the
American Republic, a sedition law was enacted, making it
an offense to libel the Government, the Congress, or the
President of the United States, but the law met with so
much popular disapproval, that it was soon repealed. "In
this country no distinction as to person is recognized, and
in practice a person holding a high office is regarded as a
target at whom any person may left fly his poisonous
words. High official position, instead of affording immunity
from slanderous and libelous charges, seems rather to be
regarded as making his character free plunder for anyone
who desires to create a sensation by attacking it." (Newell,
Slander and Libel, 3d ed., p.245; Sillars vs. Collier [1890],
151 Mass., 50; 6L. R. A., 680.)
Article 256 of the Penal code is contrary to the genius and
fundamental principles of the American character and
systems of government. The gulf which separates this
article from the spirit which inspires all penal legislation of
American origin, is as wide as that which separates a
monarchy from a democratic republic like that of the United
States. This article was crowded out by implication as soon
as the United States established its authority in the
Philippine Islands. Penalties out of all proportion to the
gravity of the offense, grounded in a distorted monarchical
conception of the nature of political authority, as opposed

PALISOC & SARMIENTO

to the American conception of the protection of the interest

of the public, have been obliterated by the present system
of government in the Islands.
From an entirely different point of view, it must be noted
that this article punishes contempts against executive
officials, although its terms are broad enough to cover the
entire official class. Punishment for contempt of non judicial
officers has no place in a government based upon American
principles. Our official class is not, as in monarchies, an
agent of some authority greater than the people but it is an
agent and servant of the people themselves. These officials
are only entitled to respect and obedience when they are
acting within the scope of their authority and jurisdiction.
The American systems of government is calculated to
enforce respect and obedience where such respect and
obedience is due, but never does it place around the
individual who happens to occupy an official position by
mandate of the people any official halo, which calls for
drastic punishment for contemptuous remarks.
The crime of lese majeste disappeared in the Philippines
with ratification of the Treaty of Paris . Ministers of the
Crown have no place under the American flag.
To summarize, the result is, that all the members of the
court are of the opinion, although for different reasons,
that the judgment should be reversed and the defendant
and appellant acquitted, with costs de officio. So ordered.
Ostrand, and Johns, JJ., concur.
Separate Opinions
ARAULLO, C. J., concurring:
I concur with the dispositive part of the foregoing decision,
that is, with the acquittal of the accused, for the sole
reason that the facts alleged in the information do not
constitute a violation of article 256 of the Penal Code; for
although that article is in force with respect to calumny,
injury, or insult, by deed or word, against an authority in
the performance of his duties or by reason thereof, outside
of his presence, it is repealed by the Libel Law in so far as it
refers to calumny, injuria, or insult committed against an
authority by writing or printing, as was that inserted in the
said information.

6 | Page

ROMUALDEZ, J., with whom concur JOHNSON, STREET,

AVANCENA, AND VILLAMOR, JJ., concurring:
I concur with the result. I believe that the responsibility of
the accused has not been shown either under article 256 of
the Penal Code or under the Libel Law.
I am of the opinion that article 256 of the Penal Code is still
in force, except as it refers to "Ministers of the Crown,"
whom we do not have in our Government, and to calumny,
injuria, or insult, by writing or printing, committed against
an authority in the performance of his duties or by reason
thereof, which portion was repealed by the Libel Law.
Political Law; Constitutional Law; Constitution; Definition,
Nature and Concepts
Definition

be changed by ordinary legislation. [Nachura, Outline

Reviewer in Political law (2009)]
Interpretation
There are three basic principles in interpreting the
Constitution, these are:
1. Verba legis, whenever possible, the words used in the
Constitution must be given their ordinary meaning
except where technical terms are employed.
2. Ratio et anima, where there is ambiguity, the
Constitution should be interpreted in accordance with
the intent of the framers.
3. Ut magis valeat quan pereat, the Constitution must
be interpreted as a whole. [Francisco v. House of
Representatives, G.R. No. 160261, November 10
2003]

The Constitution is that written instrument enacted by

direct action of the people by which the fundamental
powers of the government are established, limited and
defined, and by which those powers are distributed among
the several departments for their safe and useful exercise
for
the
benefit
of
the
body
politic.
Classification
Constitutions may be classified into as:
1. Written or unwritten. A written Constitution is one
whose precepts are embodied in one document or set
of documents; while an unwritten Constitution
consist of rules which have not been integrated into
a single, concrete form but are scattered in various
sources such as statutes of fundamental character,
judicial decisions, commentaries of publicists and
traditions, and certain common law principles.
2. Enacted or Evolved. A conventional (Enacted)
Constitution is enacted, formally struck off at a
definite time and place following a conscious or
deliberate effort taken by a constituent body or ruler;
while a cumulative (Evolved) Constitution is the
result of political revolution, not inaugurated at any
specific time but changing by accretion rather than
any systematic method.
3. Rigid or Flexible. A rigid Constitution is one that can
be amended only by a formal and usually difficult
process; while a flexible Constitution is one that can

PALISOC & SARMIENTO

7 | Page

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA.

ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE
M. RESURRECCION, petitioners, vs. HON. BENJAMIN B.
ESGUERRA, in his capacity as OIC Governor of the Province
of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC
Mayor of the Municipality of Taytay, Rizal, FLORENTINO G.
MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA,
TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, respondents.
G.R. No. 78059 | 1987-08-31
DECISION
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners
seeking to enjoin respondents from replacing them from
their respective positions as Barangay Captain and
Barangay Councilmen of Barangay Dolores, Municipality of
Taytay, Province of Rizal.
As required by the Court, respondents submitted their
Comment on the Petition, and petitioner's their Reply to
respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner
Alfredo M. De Leon was elected Barangay Captain and the
other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose
C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion,
as Barangay Councilmen of Barangay Dolores, Taytay, Rizal
under Batas Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M. de Leon received
a Memorandum antedated December 1, 1986 but signed by
respondent OIC Governor Benjamin Esguerra on February 8,
1987 designating respondent Florentino G. Magno as
Barangay Captain of Barangay Dolores, Taytay, Rizal. The
designation made by the OIC Governor was "by authority of
the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed
a Memorandum, antedated December 1, 1986 designating
respondents Remigio M. Tigas, Ricardo Z. Lacanienta,
Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino

PALISOC & SARMIENTO

as members of the Barangay Council of the same Barangay

and Municipality.
That the Memoranda had been antedated is evidenced by
the Affidavit of respondent OIC Governor, the pertinent
portions of which read:
"xxx xxx xxx
"That I am the OIC Governor of Rizal having been appointed
as such on March 20, 1986;
"That as being OIC Governor of the Province of Rizal, and in
the performance of my duties thereof, I among others, have
signed as I did sign the unnumbered memorandum ordering
the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
"That the above cited memorandum dated December 1,
1986 was signed by me personally on February 8, 1987;
"That said memorandum was further deciminated (sic) to all
concerned the following day, February 9, 1987.
FURTHER AFFIANT SAYETH NONE.
"Pasig, Metro Manila, March 23, 1987."
Before us now, petitioners pray that the subject Memoranda
of February 8, 1987 be declared null and void and that
respondents be prohibited from taking over their positions
of
Barangay
Captain
and
Barangay
Councilmen,
respectively. Petitioners maintain that pursuant to Section
3 of the Barangay Election Act of 1982 (8P Blg. 222), their
terms of office "shall be six (6) years which shall commence
on June 7, 1982 and shall continue until their successors
shall have elected and shall have qualified," or up to June 7,
1988. It is also their position that with the ratification of
the 1987 Constitution, respondent OIC Governor no longer
has the authority to replace them and to designate their
successors.
On the other hand, respondents rely on Section 2, Article III
of the Provisional Constitution, promulgated on March 25,
1986, which provided:

8 | Page

"SECTION 2. All elective and appointive officials and

employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or executive
order or upon the designation or appointment and
qualification of their successors, if such appointment is
made within a period of one year from February 25, 1986."
By reason of the foregoing provision, respondents contend
that the terms of office of elective and appointive officials
were abolished and that petitioners continued in office by
virtue of the aforequoted provision and not because their
term of six years had not yet expired; and that the
provision in the Barangay Election Act fixing the term of
office of Barangay officials to six (6) years must be deemed
to have been repealed for being inconsistent with the
aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question
that petitioners, as elective officials under the 1973
Constitution, may continue in office but should vacate their
positions upon the occurrence of any of the events
mentioned. 1
Since the promulgation of the Provisional Constitution,
there has been no proclamation or executive order
terminating the term of elective Barangay officials. Thus,
the issue for resolution is whether or not the designation of
respondents to replace petitioners was validly made during
the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC
Governor, we hold that February 8, 1977, should be
considered as the effective date of replacement and not
December 1, 1986 to which it was antedated, in keeping
with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one
year deadline, the aforequoted provision in the Provisional
Constitution must be deemed to have been overtaken by
Section 27, Article XVIII of the 1987 Constitution reading:
"Sec 27. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all
previous Constitutions."

PALISOC & SARMIENTO

The 1987 Constitution was ratified in a plebiscite on

February 2, 1987. By that date, therefore, the Provisional
Constitution must be deemed to have been superseded.
Having become inoperative, respondent OIC Governor could
no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by
petitioners.
Petitioners must now be held to have acquired security of
tenure specially considering that the Barangay Election Act
of 1982 declares it "a policy of the State to guarantee and
promote the autonomy of the barangays to ensure their
fullest development as self-reliant communities." 2
Similarly, the 1987 Constitution ensures the autonomy of
local governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power
to "general supervision" over local governments. 4
Relevantly, Section 8, Article X of the same 1987
Constutution further provides in part:
"Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall
be three years . . . "
Until the term of office of barangay officials has been
determined by law, therefore, the term of office of six (6)
years provided for in the Barangay Election Act of 1982 5
should still govern.
Contrary to the stand of respondents, we find nothing
inconsistent between the term of six (6) years for elective
Barangay officials and the 1987 Constitution, and the same
should, therefore, be considered as still operative, pursuant
to Section 3, Article XVIII of the 1987 Constitution, reading:
"Sec. 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions, and other executive
issuances not inconsistent, with this Constitution shall
remain operative until amended, repealed or revoked."
WHEREFORE, (1) The Memoranda issued by respondent OIC
Governor on February 8, 1987 designating respondents as
the
Barangay
Captain
and
Barangay
Councilmen,
respectively, of Barangay Dolores, Taytay, Rizal, are both
declared to be of no legal force and effect; and (2) the Writ
of Prohibition is granted enjoining respondents perpetually

9 | Page

from proceeding with the ouster/take-over of petitioners'

positions subject of this Petition. Without costs.
SO ORDERED.

PALISOC & SARMIENTO

10 | P a g e

ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT

NA MGA MANANANGGOL NG MGA MANGGAGAWANG
PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-inintervention, WORLD WAR II VETERANS LEGIONARIES OF
THE
PHILIPPINES,
INC.,
petitioner-in-intervention
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED
BY
SENATE
PRESIDENT
FRANKLIN
M.
DRILON,
REPRESENTATIVE
GILBERTO
C.
TEODORO,
JR.
AND
REPRESENTATIVE
FELIX
WILLIAM
B.
FUENTEBELLA,
respondents,
JAIME
N.
SORIANO,
respondent-inIntervention, SENATOR AQUILINO Q. PIMENTEL, respondentin-intervention.
G.R. No. 160261 | 2003-11-10
EN BANC
DECISION
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no
matter how passionate and seemingly irreconcilable it may appear
to be, over the determination by the independent branches of
government of the nature, scope and extent of their respective
constitutional powers where the Constitution itself provides for the
means and bases for its resolution.

In any event, it is with the absolute certainty that our Constitution

is sufficient to address all the issues which this controversy spawns
that this Court unequivocally pronounces, at the first instance, that
the feared resort to extra-constitutional methods of resolving it is
neither necessary nor legally permissible. Both its resolution and
protection of the public interest lie in adherence to, not departure
from, the Constitution.
In passing over the complex issues arising from the controversy,
this Court is ever mindful of the essential truth that the inviolate
doctrine of separation of powers among the legislative, executive
or judicial branches of government by no means prescribes for
absolute autonomy in the discharge by each of that part of the
governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances
which has been carefully calibrated by the Constitution to temper
the official acts of each of these three branches must be given
effect without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican
government, intended as they are to insure that governmental
power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these
branches where the delicate functions of enacting, interpreting and
enforcing laws are harmonized to achieve a unity of governance,
guided only by what is in the greater interest and well-being of the
people. Verily, salus populi est suprema lex.

Our nation's history is replete with vivid illustrations of the often

frictional, at times turbulent, dynamics of the relationship among
these co-equal branches. This Court is confronted with one such
today involving the legislature and the judiciary which has drawn
legal luminaries to chart antipodal courses and not a few of our
countrymen to vent cacophonous sentiments thereon.

Article XI of our present 1987 Constitution provides:

There may indeed be some legitimacy to the characterization that

the present controversy subject of the instant petitions - whether
the filing of the second impeachment complaint against Chief
Justice Hilario G. Davide, Jr. with the House of Representatives falls
within the one year bar provided in the Constitution, and whether
the resolution thereof is a political question - has resulted in a
political crisis. Perhaps even more truth to the view that it was
brought upon by a political crisis of conscience.

SECTION 1. Public office is a public trust. Public officers and

employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.

PALISOC & SARMIENTO

ARTICLE XI
Accountability of Public Officers

SECTION 2. The President, the Vice-President, the Members of the

Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office, on impeachment
for, and conviction of, culpable violation of the Constitution,

11 | P a g e

treason, bribery, graft and corruption, other high crimes, or

betrayal of public trust. All other public officers and employees may
be removed from office as provided by law, but not by
impeachment.

(8) The Congress shall promulgate its rules on impeachment to

effectively carry out the purpose of this section. (Emphasis
and underscoring supplied)

SECTION 3. (1) The House of Representatives shall

the exclusive power to initiate all cases of impeachment.

Following the above-quoted Section 8 of Article XI of the

Constitution, the 12th Congress of the House of Representatives
adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001,
superseding the previous House Impeachment Rules[1] approved
by the 11th Congress. The relevant distinctions between these
two Congresses' House Impeachment Rules are shown in the
following tabulation:

have

(2) A verified complaint for impeachment may be filed by any

Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of
all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by
the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall
be necessary either to affirm a favorable resolution with the Articles
of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is
filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against
same official more than once within a period of one year.

the

(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the Senators
shall be on oath or affirmation. When the President of the
Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial, and
punishment according to law.

PALISOC & SARMIENTO

11TH CONGRESS RULES

RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating Impeachment. - Impeachment
shall be initiated only by a verified complaint for impeachment filed
by any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof or by a
verified complaint or resolution of impeachment filed by at least
one-third (1/3) of all the Members of the House.
12TH CONGRESS NEW RULES
RULE V
BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. - Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of
impeachment or a citizen files a verified complaint that is endorsed
by a Member of the House through a resolution of endorsement
against an impeachable officer, impeachment proceedings against
such official are deemed initiated on the day the Committee on
Justice finds that the verified complaint and/or resolution against
such official, as the case may be, is sufficient in substance, or on
the date the House votes to overturn or affirm the finding of the
said Committee that the verified complaint and/or resolution, as the
case may be, is not sufficient in substance.

12 | P a g e

In cases where a verified complaint or a resolution of impeachment

is filed or endorsed, as the case may be, by at least one-third (1/3)
of the Members of the House, impeachment proceedings are
deemed initiated at the time of the filing of such verified
complaint or resolution of impeachment with the Secretary
General.
Section 17. Bar Against Initiation Of Impeachment
Proceedings. - Within a period of one (1) year from the date
impeachment proceedings are deemed initiated as provided in
Section 16 hereof, no impeachment proceedings, as such, can be
initiated against the same official. (Italics in the original; emphasis
and underscoring supplied)
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. - No impeachment proceedings shall
be initiated against the same official more than once within the
period of one (1) year.

On July 22, 2002, the House of Representatives adopted a

Resolution,[2] sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to conduct
an investigation, in aid of legislation, on the manner of
disbursements and expenditures by the Chief Justice of the
Supreme Court of the Judiciary Development Fund (JDF)."[3]

On June 2, 2003, former President Joseph E. Estrada filed an

impeachment complaint[4] (first impeachment complaint) against
Chief Justice Hilario G. Davide Jr. and seven Associate Justices[5] of
this Court for "culpable violation of the Constitution, betrayal of the
public trust and other high crimes."[6] The complaint was endorsed
by Representatives Rolex T. Suplico, Ronaldo B. Zamora and
Didagen Piang Dilangalen,[7] and was referred to the House
Committee on Justice on August 5, 2003[8] in accordance with
Section 3(2) of Article XI of the Constitution which reads:

PALISOC & SARMIENTO

Section 3(2) A verified complaint for impeachment may be filed by

any Member of the House of Representatives or by any citizen upon
a resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of
all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by
the House within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the
first impeachment complaint was "sufficient in form,"[9] but voted
to dismiss the same on October 22, 2003 for being insufficient in
substance.[10] To date, the Committee Report to this effect has not
yet been sent to the House in plenary in accordance with the said
Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the
first complaint or on October 23, 2003, a day after the House
Committee on Justice voted to dismiss it, the second impeachment
complaint[11] was filed with the Secretary General of the
House[12] by Representatives Gilberto C. Teodoro, Jr. (First District,
Tarlac) and Felix William B. Fuentebella (Third District, Camarines
Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by abovementioned House Resolution. This second impeachment complaint
was accompanied by a "Resolution of Endorsement/Impeachment"
signed by at least one-third (1/3) of all the Members of the House of
Representatives.[13]
Thus arose the instant petitions against the House of
Representatives, et. al., most of which petitions contend that the
filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution
that "[n]o impeachment proceedings shall be initiated against the
same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr.,
alleging that he has a duty as a member of the Integrated Bar of
the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition
for Certiorari, Prohibition and Mandamus are of transcendental
importance, and that he "himself was a victim of the capricious and
arbitrary changes in the Rules of Procedure in Impeachment
Proceedings introduced by the 12th Congress,"[14] posits that his

13 | P a g e

right to bring an impeachment complaint against then Ombudsman

Aniano Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted and
approved on November 28, 2001 by the House of Representatives
and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections
5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court
issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3)
and (5) of the Constitution, to return the second impeachment
complaint and/or strike it off the records of the House of
Representatives, and to promulgate rules which are consistent with
the Constitution; and (3) this Court permanently enjoin respondent
House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as
citizens and taxpayers, alleging that the issues of the case are of
transcendental
importance,
pray,
in
their
petition
for
Certiorari/Prohibition, the issuance of a writ "perpetually"
prohibiting respondent House of Representatives from filing any
Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ "perpetually" prohibiting respondents
Senate and Senate President Franklin Drilon from accepting any
Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the
impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad
Cagampang, as citizens, taxpayers, lawyers and members of the
Integrated Bar of the Philippines, alleging that their petition for
Prohibition involves public interest as it involves the use of public
funds necessary to conduct the impeachment trial on the second
impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings
on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that
this Court has recognized that he has locus standi to bring petitions
of this nature in the cases of Chavez v. PCGG[15] and Chavez v.
PEA-Amari Coastal Bay Development Corporation,[16] prays in his
petition for Injunction that the second impeachment complaint be
declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as
taxpayers and members of the legal profession, pray in their
petition for Prohibition for an order prohibiting respondent House of

PALISOC & SARMIENTO

Representatives
from
drafting,
adopting,
approving
and
transmitting to the Senate the second impeachment complaint, and
respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F.
Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as
members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment
proceedings
are
initiated,
pray
in
their
petition
for
Certiorari/Prohibition that the second impeachment complaint and
any act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming
that they have a right to be protected against all forms of senseless
spending of taxpayers' money and that they have an obligation to
protect the Supreme Court, the Chief Justice, and the integrity of
the Judiciary, allege in their petition for Certiorari and Prohibition
that it is instituted as "a class suit" and pray that (1) the House
Resolution endorsing the second impeachment complaint as well as
all issuances emanating therefrom be declared null and void; and
(2) this Court enjoin the Senate and the Senate President from
taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition
commanding the Senate, its prosecutors and agents to desist from
conducting any proceedings or to act on the impeachment
complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose
members are citizens and taxpayers, and its co-petitioner Crispin T.
Reyes, a citizen, taxpayer and a member of the Philippine Bar, both
allege in their petition, which does not state what its nature is, that
the filing of the second impeachment complaint involves
paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a
citizen and a member of the Philippine Bar Association and of the
Integrated Bar of the Philippines, and petitioner Engr. Maximo N.
Menez, Jr., as a taxpayer, pray in their petition for the issuance of a
Temporary Restraining Order and Permanent Injunction to enjoin
the House of Representatives from proceeding with the second
impeachment complaint.

14 | P a g e

In G.R. No. 160343, petitioner Integrated Bar of the Philippines,

alleging that it is mandated by the Code of Professional
Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and
Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be
declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second
impeachment complaint.

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and

Hector L. Hofilea, alleging that as professors of law they have an
abiding interest in the subject matter of their petition for Certiorari
and Prohibition as it pertains to a constitutional issue "which they
are trying to inculcate in the minds of their students," pray that the
House of Representatives be enjoined from endorsing and the
Senate from trying the Articles of Impeachment and that the
second impeachment complaint be declared null and void.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in

his petition for Certiorari and Prohibition that the House
Impeachment Rules be declared unconstitutional.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without

alleging his locus standi, but alleging that the second impeachment
complaint is founded on the issue of whether or not the Judicial
Development Fund (JDF) was spent in accordance with law and that
the House of Representatives does not have exclusive jurisdiction in
the examination and audit thereof, prays in his petition "To Declare
Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared
null and void.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation

Inc., et. al., in their petition for Prohibition and Injunction which
they claim is a class suit filed in behalf of all citizens, citing Oposa
v. Factoran[17] which was filed in behalf of succeeding generations
of Filipinos, pray for the issuance of a writ prohibiting respondents
House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this
Court declare as unconstitutional the second impeachment
complaint and the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan
Aquino, alleging that the issues in his petition for Prohibition are of
national and transcendental significance and that as an official of
the Philippine Judicial Academy, he has a direct and substantial
interest in the unhampered operation of the Supreme Court and its
officials in discharging their duties in accordance with the
Constitution, prays for the issuance of a writ prohibiting the House
of Representatives from transmitting the Articles of Impeachment
to the Senate and the Senate from receiving the same or giving the
impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer,
alleges in his petition for Prohibition that respondents Fuentebella
and Teodoro at the time they filed the second impeachment
complaint, were "absolutely without any legal power to do so, as
they acted without jurisdiction as far as the Articles of
Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."

PALISOC & SARMIENTO

In G.R. No. 160403, petitioner Philippine Bar Association, alleging

that the issues raised in the filing of the second impeachment
complaint involve matters of transcendental importance, prays in
its petition for Certiorari/Prohibition that (1) the second
impeachment complaint and all proceedings arising therefrom be
declared null and void; (2) respondent House of Representatives be
prohibited from transmitting the Articles of Impeachment to the
Senate; and (3) respondent Senate be prohibited from accepting
the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as
citizens
and
taxpayers,
pray
in
their
petition
for
Certiorari/Prohibition that (1) the second impeachment complaint
as well as the resolution of endorsement and impeachment by the
respondent House of Representatives be declared null and void and
(2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the
Chief Justice or, in the event that they have accepted the same,
that they be prohibited from proceeding with the impeachment
trial.

15 | P a g e

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and

160263, the first three of the eighteen which were filed before this
Court,[18] prayed for the issuance of a Temporary Restraining
Order and/or preliminary injunction to prevent the House of
Representatives from transmitting the Articles of Impeachment
arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for
the declaration of the November 28, 2001 House Impeachment
Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and
160295, which were filed on October 28, 2003, sought similar relief.
In addition, petition bearing docket number G.R. No. 160292
alleged that House Resolution No. 260 (calling for a legislative
inquiry into the administration by the Chief Justice of the JDF)
infringes on the constitutional doctrine of separation of powers and
is a direct violation of the constitutional principle of fiscal autonomy
of the judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second
impeachment complaint be formally transmitted to the Senate, but
it was not carried because the House of Representatives adjourned
for lack of quorum,[19] and as reflected above, to date, the Articles
of Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary
restraining order and/or writ of preliminary injunction which were
filed on or before October 28, 2003, Justices Puno and Vitug offered
to recuse themselves, but the Court rejected their offer. Justice
Panganiban inhibited himself, but the Court directed him to
participate.
Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the
petitions; (b) require respondent House of Representatives and the
Senate, as well as the Solicitor General, to comment on the
petitions not later than 4:30 p.m. of November 3, 2003; (c) set the
petitions for oral arguments on November 5, 2003, at 10:00 a.m.;
and (d) appointed distinguished legal experts as amici curiae.[20]
In addition, this Court called on petitioners and respondents to
maintain the status quo, enjoining all the parties and others acting
for and in their behalf to refrain from committing acts that would
render the petitions moot.

PALISOC & SARMIENTO

Also on October 28, 2003, when respondent House of

Representatives through Speaker Jose C. De Venecia, Jr. and/or its
co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear,
much less prohibit or enjoin the House of Representatives, which is
an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated
duty to initiate impeachment cases. On even date, Senator Aquilino
Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex
Abudante Cautela)[21] and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of the
Court over the issues affecting the impeachment proceedings and
that the sole power, authority and jurisdiction of the Senate as the
impeachment court to try and decide impeachment cases,
including the one where the Chief Justice is the respondent, be
recognized and upheld pursuant to the provisions of Article XI of
the Constitution."[22]
Acting on the other petitions which were subsequently filed, this
Court resolved to (a) consolidate them with the earlier consolidated
petitions; (b) require respondents to file their comment not later
than 4:30 p.m. of November 3, 2003; and (c) include them for oral
arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate
President Franklin M. Drilon, filed a Manifestation stating that
insofar as it is concerned, the petitions are plainly premature and
have no basis in law or in fact, adding that as of the time of the
filing of the petitions, no justiciable issue was presented before it
since (1) its constitutional duty to constitute itself as an
impeachment court commences only upon its receipt of the Articles
of Impeachment, which it had not, and (2) the principal issues
raised by the petitions pertain exclusively to the proceedings in the
House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave
to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277,
160292, and 160295, questioning the status quo Resolution issued
by this Court on October 28, 2003 on the ground that it would
unnecessarily put Congress and this Court in a "constitutional
deadlock" and praying for the dismissal of all the petitions as the
matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete
Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of

16 | P a g e

Court to Intervene and to Admit the Herein Incorporated Petition in

Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng
mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in
G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-inIntervention with Leave to Intervene" in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator
Pimentel's Comment and Attorneys Macalintal and Quadra's
Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici
curiae and the arguments of petitioners, intervenors Senator
Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by
this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be
invoked; who can invoke it; on what issues and at what time; and
whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole"
impeachment;

power

to

try

and

decide

all

cases

of

f) constitutionality of the House Rules on Impeachment vis-a-vis

Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive
issues arising from the instant petitions as well as the myriad
arguments and opinions presented for and against the grant of the

PALISOC & SARMIENTO

reliefs prayed for, this Court has sifted and determined them to be
as follows: (1) the threshold and novel issue of whether or not the
power of judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites for the
exercise of the power of judicial review have been fulfilled; and (3)
the substantive issues yet remaining. These matters shall now be
discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the
power of judicial review to determine the validity of the second
impeachment complaint.
This Court's power of judicial review is conferred on the judicial
branch of the government in Section 1, Article VIII of our present
1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded
upon by Justice Jose P. Laurel in the definitive 1936 case of Angara
v. Electoral Commission[23] after the effectivity of the 1935
Constitution whose provisions, unlike the present Constitution, did
not contain the present provision in Article VIII, Section 1, par. 2 on
what judicial power includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if
not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be
called upon to determine the proper allocation of powers
between the several departments and among the integral
or constituent units thereof.
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power
of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however
limited, has established a republican government intended to

17 | P a g e

operate and function as a harmonious whole, under a system of

checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would
be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government
along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere expressions
of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living
constitution. In the United States where no express constitutional
grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical
origin and development there, has been set at rest by popular
acquiescence for a period of more than one and a half centuries. In
our case, this moderating power is granted, if not expressly, by
clear implication from section 2 of article VIII of our
Constitution.
The Constitution is a definition of the powers of government. Who
is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way.
And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which
that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full opportunity
of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the

PALISOC & SARMIENTO

judiciary in the determination of actual cases and controversies

must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative
departments of the government.[24] (Italics in the original;
emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of government
along constitutional channels" is inherent in all courts[25] as a
necessary consequence of the judicial power itself, which is "the
power of the court to settle actual controversies involving rights
which are legally demandable and enforceable."[26]
Thus, even in the United States where the power of judicial review
is not explicitly conferred upon the courts by its Constitution, such
power has "been set at rest by popular acquiescence for a period of
more than one and a half centuries." To be sure, it was in the 1803
leading case of Marbury v. Madison[27] that the power of judicial
review was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring
what shall be the supreme law of the land, the constitution itself is
first mentioned; and not the laws of the United States generally,
but those only which shall be made in pursuance of the
constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts,
as well as other departments, are bound by that
instrument.[28] (Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express
grant in the 1935 Constitution, the power of judicial review was
exercised by our courts to invalidate constitutionally infirm acts.
[29] And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,[30] the executive and
legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom
or
practice
to
the
contrary.

18 | P a g e

When the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or
the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,[31] judicial review
is indeed an integral component of the delicate system of checks
and balances which, together with the corollary principle of
separation of powers, forms the bedrock of our republican form of
government and insures that its vast powers are utilized only for
the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision
but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution
has provided for an elaborate system of checks and
balances to secure coordination in the workings of the
various departments of the government. x x x And the
judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the
Constitution.[32] (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "x x x judicial review is essential for the
maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them."[33] To him,
"[j]udicial review is the chief, indeed the only, medium of
participation - or instrument of intervention - of the judiciary in that
balancing operation."[34]
To ensure the potency of the power of judicial review to curb grave
abuse of discretion by "any branch or instrumentalities of
government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block
letter law the so-called "expanded certiorari jurisdiction" of this

PALISOC & SARMIENTO

Court, the nature of and rationale for which are mirrored in the
following excerpt from the sponsorship speech of its proponent,
former Chief Justice Constitutional Commissioner Roberto
Concepcion:
xxx
The first section starts with a sentence copied from former
Constitutions.
It
says:
The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first
and explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of
our experience during martial law. As a matter of fact, it has
some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions
and got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law
failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political, we
have no authority to pass upon it." The Committee on the Judiciary
feels that this was not a proper solution of the questions involved. It
did not merely request an encroachment upon the rights of the
people, but it, in effect, encouraged further violations thereof
during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of
power of the agencies and offices of the government as well

19 | P a g e

as those of its officers. In other words, the judiciary is the

final arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as
to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this
nature.
This is the background of paragraph 2 of Section
that the courts cannot hereafter evade the
matters of this nature, by claiming that
constitute a political question.[35] (Italics
emphasis and underscoring supplied)

1, which means
duty to settle
such matters
in the original;

To determine the merits of the issues raised in the instant petitions,

this Court must necessarily turn to the Constitution itself which
employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where
technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v.
Land Tenure Administration,[36] this Court, speaking through Chief
Justice Enrique Fernando, declared:
We look to the language of the document itself in our
search for its meaning. We do not of course stop there, but
that is where we begin.It is to be assumed that the words in
which constitutional provisions are couched express the
objective sought to be attained. They are to be given
their ordinary meaning except where technical terms are
employed in which case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it
should ever be present in the people's consciousness, its language
as much as possible should be understood in the sense they have
in common use. What it says according to the text of the
provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus these are the
cases where the need for construction is reduced to a minimum.
[37] (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words
of the Constitution should be interpreted in accordance with the
intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary[38] in this wise:

PALISOC & SARMIENTO

A foolproof yardstick in constitutional construction is the intention

underlying the provision under consideration. Thus, it has been
held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils,
if any, sought to be prevented or remedied. A doubtful provision
will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced
the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished
thereby, in order to construe the whole as to make the
words consonant to that reason and calculated to effect
that purpose.[39] (Emphasis and underscoring supplied supplied)
As it did in Nitafan v. Commissioner on Internal Revenue[40] where,
speaking through Madame Justice Amuerfina A. Melencio-Herrera, it
declared:
x x x The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional construction
that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the
adoption of the Constitution. It may also be safely assumed
that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers .[41]
(Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be
interpreted as a whole. Thus, in Chiongbian v. De Leon,[42] this
Court,
through
Chief
Justice
Manuel
Moran
declared:
x x x [T]he members of the Constitutional Convention could
not have dedicated a provision of our Constitution merely
for the benefit of one person without considering that it
could also affect others. When they adopted subsection 2,
they permitted, if not willed, that said provision should
function to the full extent of its substance and its terms,
not by itself alone, but in conjunction with all other
provisions of that great document.[43] (Emphasis and
underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,[44] this
Court
affirmed
that:

20 | P a g e

It is a well-established rule in constitutional construction

that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate
the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together.

Briefly stated, it is the position of respondents Speaker De Venecia

et. al. that impeachment is a political action which cannot assume
a judicial character. Hence, any question, issue or incident arising
at any stage of the impeachment proceeding is beyond the reach of
judicial review.[47]

In other words, the court must harmonize them, if practicable, and

must lean in favor of a construction which will render every word
operative, rather than one which may make the words idle and
nugatory.[45] (Emphasis supplied)

In furthering their arguments on the proposition that impeachment

proceedings are outside the scope of judicial review, respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel rely
heavily on American authorities, principally the majority opinion in
the case of Nixon v. United States.[50] Thus, they contend that the
exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try
crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it
would create a lack of finality and difficulty in fashioning relief.[51]
Respondents likewise point to deliberations on the US Constitution
to show the intent to isolate judicial power of review in cases of
impeachment.

If, however, the plain meaning of the word is not found to be clear,
resort to other aids is available. In still the same case of Civil
Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates
and proceedings of the constitutional convention in order to
arrive
at
the
reason
and
purpose
of
the
resulting
Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear.
Debates in the constitutional convention "are of value as showing
the views of the individual members, and as indicating the reasons
for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the
constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's
understanding thereof.[46] (Emphasis and underscoring
supplied)
It is in the context of the foregoing backdrop of constitutional
refinement and jurisprudential application of the power of judicial
review that respondents Speaker De Venecia, et. al. and intervenor
Senator Pimentel raise the novel argument that the Constitution
has excluded impeachment proceedings from the coverage of
judicial review.

PALISOC & SARMIENTO

For his part, intervenor Senator Pimentel contends that the

Senate's "sole power to try" impeachment cases[48] (1) entirely
excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional
questions relative to impeachment proceedings.[49]

Respondents'
and
intervenors'
reliance
upon
American
jurisprudence,
the
American
Constitution
and
American
authorities cannot be credited to support the proposition that the
Senate's "sole power to try and decide impeachment cases," as
provided for under Art. XI, Sec. 3(6) of the Constitution, is a
textually demonstrable constitutional commitment of all issues
pertaining to impeachment to the legislature, to the total exclusion
of the power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably support
the interpretation that it necessarily confers upon the Senate the
inherently judicial power to determine constitutional questions
incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the
American Constitution, are of dubious application for these are no
longer controlling within our jurisdiction and have only limited
persuasive merit insofar as Philippine constitutional law is
concerned. As held in the case of Garcia vs. COMELEC,[52] "[i]n
resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly

21 | P a g e

applicable because they have been dictated by different

constitutional settings and needs."[53] Indeed, although the
Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. In the
colorful words of Father Bernas, "[w]e have cut the umbilical cord."

impeachment power is beyond the scope of judicial review, are not

in point. These cases concern the denial of petitions for writs of
mandamus to compel the legislature to perform non-ministerial
acts, and do not concern the exercise of the power of judicial
review.

The major difference between the judicial power of the Philippine

Supreme Court and that of the U.S. Supreme Court is that while the
power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the
Philippine Supreme Court and lower courts, as expressly provided
for in the Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to
correct any grave abuse of discretion on the part of any
government branch or instrumentality.

There is indeed a plethora of cases in which this Court exercised

the power of judicial review over congressional action. Thus, in
Santiago v. Guingona, Jr.,[60] this Court ruled that it is well within
the power and jurisdiction of the Court to inquire whether the
Senate or its officials committed a violation of the Constitution or
grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara,[61] in seeking to nullify an act of
the Philippine Senate on the ground that it contravened the
Constitution, it held that the petition raises a justiciable controversy
and that when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. In
Bondoc v. Pineda,[62] this Court declared null and void a resolution
of the House of Representatives withdrawing the nomination, and
rescinding the election, of a congressman as a member of the
House Electoral Tribunal for being violative of Section 17, Article VI
of the Constitution. In Coseteng v. Mitra,[63] it held that the
resolution of whether the House representation in the Commission
on Appointments was based on proportional representation of the
political parties as provided in Section 18, Article VI of the
Constitution is subject to judicial review. In Daza v. Singson,[64] it
held that the act of the House of Representatives in removing the
petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,[65] it held that although under
the Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress. In Angara v.
Electoral Commission,[66] it ruled that confirmation by the National
Assembly of the election of any member, irrespective of whether
his election is contested, is not essential before such member-elect
may discharge the duties and enjoy the privileges of a member of
the National Assembly.

There are also glaring distinctions between the U.S. Constitution

and the Philippine Constitution with respect to the power of the
House of Representatives over impeachment proceedings. While
the U.S. Constitution bestows sole power of impeachment to the
House of Representatives without limitation,[54] our Constitution,
though vesting in the House of Representatives the exclusive power
to initiate impeachment cases,[55] provides for several limitations
to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of
filing, required vote to impeach, and the one year bar on the
impeachment of one and the same official.
Respondents are also of the view that judicial review of
impeachments undermines their finality and may also lead to
conflicts between Congress and the judiciary. Thus, they call upon
this Court to exercise judicial statesmanship on the principle that
"whenever possible, the Court should defer to the judgment of the
people expressed legislatively, recognizing full well the perils of
judicial willfulness and pride."[56]
But did not the people also express their will when they instituted
the above-mentioned safeguards in the Constitution? This shows
that the Constitution did not intend to leave the matter of
impeachment to the sole discretion of Congress. Instead, it
provided for certain well-defined limits, or in the language of Baker
v. Carr,[57] "judicially discoverable standards" for determining the
validity of the exercise of such discretion, through the power of
judicial review.
The cases of Romulo v. Yniguez[58] and Alejandrino v. Quezon,[59]
cited by respondents in support of the argument that the

PALISOC & SARMIENTO

Finally, there exists no constitutional basis for the contention that

the exercise of judicial review over impeachment proceedings
would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not
to be allowed to defeat another."[67] Both are integral components
of the calibrated system of independence and interdependence
that insures that no branch of government act beyond the powers
assigned to it by the Constitution.

22 | P a g e

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts'
power of judicial review, like almost all powers conferred by the
Constitution, is subject to several limitations, namely: (1) an actual
case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at
the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative
departments of the government.[68] (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal
and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question
of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.[69]
Intervenor Soriano, in praying for the dismissal of the petitions,
contends that petitioners do not have standing since only the Chief
Justice has sustained and will sustain direct personal injury. Amicus
curiae former Justice Minister and Solicitor General Estelito
Mendoza similarly contends.

PALISOC & SARMIENTO

Upon the other hand, the Solicitor General asserts that petitioners
have standing since this Court had, in the past, accorded standing
to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest[70] and transcendental
importance,[71] and that procedural matters are subordinate to the
need to determine whether or not the other branches of the
government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the
discretion given to them.[72] Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same opinion,
citing transcendental importance and the well-entrenched rule
exception that, when the real party in interest is unable to vindicate
his rights by seeking the same remedies, as in the case of the Chief
Justice who, for ethical reasons, cannot himself invoke the
jurisdiction of this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-ininterest and the rule on standing, for the former is a concept of civil
procedure[73] while the latter has constitutional underpinnings.[74]
In view of the arguments set forth regarding standing, it behooves
the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato[75] to
clarify what is meant by locus standi and to distinguish it from real
party-in-interest.
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important to
note . . . that standing because of its constitutional and public
policy underpinnings, is very different from questions relating to
whether a particular plaintiff is the real party in interest or has
capacity to sue. Although all three requirements are directed
towards ensuring that only certain parties can maintain an action,
standing restrictions require a partial consideration of the merits,
as well as broader policy concerns relating to the proper role of the
judiciary in certain areas.
Standing is a special concern in constitutional law because in some
cases suits are brought not by parties who have been personally
injured by the operation of a law or by official action taken, but by
concerned citizens, taxpayers or voters who actually sue in the
public interest. Hence the question in standing is whether such
parties have "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is
whether he is "the party who would be benefited or injured by the

23 | P a g e

judgment, or the 'party entitled to the avails of the suit.'"[76]

(Citations omitted)

Impeachment and the ensuing trial of the Chief Justice will

necessarily involve the expenditure of public funds.

While rights personal to the Chief Justice may have been injured by
the alleged unconstitutional acts of the House of Representatives,
none of the petitioners before us asserts a violation of the personal
rights of the Chief Justice. On the contrary, they invariably invoke
the vindication of their own rights - as taxpayers; members of
Congress; citizens, individually or in a class suit; and members of
the bar and of the legal profession - which were supposedly
violated by the alleged unconstitutional acts of the House of
Representatives.

As for a legislator, he is allowed to sue to question the validity of

any official action which he claims infringes his prerogatives as a
legislator.[82] Indeed, a member of the House of Representatives
has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.[83]

In a long line of cases, however, concerned citizens, taxpayers and

legislators when specific requirements have been met have been
given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[77] In fine, when the
proceeding involves the assertion of a public right,[78] the mere
fact that he is a citizen satisfies the requirement of personal
interest.
In the case of a taxpayer, he is allowed to sue where there is a
claim that public funds are illegally disbursed, or that public money
is being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid or
unconstitutional law.[79] Before he can invoke the power of judicial
review, however, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all
members of the public.[80]
At all events, courts are vested with discretion as to whether or not
a taxpayer's suit should be entertained.[81] This Court opts to
grant standing to most of the petitioners, given their allegation that
any impending transmittal to the Senate of the Articles of

PALISOC & SARMIENTO

While an association has legal personality to represent its

members,[84] especially when it is composed of substantial
taxpayers and the outcome will affect their vital interests,[85] the
mere invocation by the Integrated Bar of the Philippines or any
member of the legal profession of the duty to preserve the rule of
law and nothing more, although undoubtedly true, does not suffice
to clothe it with standing. Its interest is too general. It is shared by
other groups and the whole citizenry. However, a reading of the
petitions shows that it has advanced constitutional issues which
deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents.[86] It, therefore, behooves this
Court to relax the rules on standing and to resolve the issues
presented by it.
In the same vein, when dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently numerous to fully
protect the interests of all concerned[87] to enable the court to
deal properly with all interests involved in the suit,[88] for a
judgment in a class suit, whether favorable or unfavorable to the
class, is, under the res judicata principle, binding on all members of
the class whether or not they were before the court.[89] Where it
clearly appears that not all interests can be sufficiently represented
as shown by the divergent issues raised in the numerous petitions
before this Court, G.R. No. 160365 as a class suit ought to fail.
Since petitioners additionally allege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole
ground of transcendental importance, while Atty. Dioscoro U.
Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance,
the following instructive determinants formulated by former
Supreme Court Justice Florentino P. Feliciano are instructive: (1) the
character of the funds or other assets involved in the case; (2) the
presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of
the government; and (3) the lack of any other party with a more

24 | P a g e

direct and specific interest in raising the questions being raised.

[90] Applying these determinants, this Court is satisfied that the
issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude
on the locus standi of a petitioner where the petitioner is able to
craft an issue of transcendental significance to the people, as when
the issues raised are of paramount importance to the public.[91]
Such liberality does not, however, mean that the requirement that
a party should have an interest in the matter is totally eliminated. A
party must, at the very least, still plead the existence of such
interest, it not being one of which courts can take judicial notice. In
petitioner Vallejos' case, he failed to allege any interest in the case.
He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of
the Rules of Court requires an intervenor to possess a legal interest
in the matter in litigation, or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof. While intervention is
not a matter of right, it may be permitted by the courts when the
applicant shows facts which satisfy the requirements of the law
authorizing intervention.[92]
In Intervenors Attorneys Romulo Macalintal and Pete Quirino
Quadra's case, they seek to join petitioners Candelaria, et. al. in
G.R. No. 160262. Since, save for one additional issue, they raise the
same issues and the same standing, and no objection on the part of
petitioners Candelaria, et. al. has been interposed, this Court as
earlier stated, granted the Motion for Leave of Court to Intervene
and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No.
160261. Invoking their right as citizens to intervene, alleging that
"they will suffer if this insidious scheme of the minority members of
the House of Representatives is successful," this Court found the
requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261,
160262, 160263, 160277, 160292, 160295, and 160310 were of
transcendental importance, World War II Veterans Legionnaires of
the Philippines, Inc. filed a "Petition-in-Intervention with Leave to
Intervene" to raise the additional issue of whether or not the
second impeachment complaint against the Chief Justice is valid
and based on any of the grounds prescribed by the Constitution.

PALISOC & SARMIENTO

Finding that Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were hereby
granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene
for the limited purpose of making of record and arguing a point of
view that differs with Senate President Drilon's. He alleges that
submitting to this Court's jurisdiction as the Senate President does
will undermine the independence of the Senate which will sit as an
impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly,
Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein
petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to
Intervene was granted and he was, as earlier stated, allowed to
argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must
be denied for, while he asserts an interest as a taxpayer, he failed
to meet the standing requirement for bringing taxpayer's suits as
set forth in Dumlao v. Comelec,[93] to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and
spent in violation of specific constitutional protection against
abuses of legislative power," or that there is a misapplication of
such funds by respondent COMELEC, or that public money is being
deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.[94] (Citations
omitted)
In praying for the dismissal of the petitions, Soriano failed even to
allege that the act of petitioners will result in illegal disbursement
of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar
does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,[95] this Court, through Chief Justice Fernando,
held that for a case to be considered ripe for adjudication, "it is a

25 | P a g e

prerequisite that something had by then been accomplished or

performed by either branch before a court may come into the
picture."[96] Only then may the courts pass on the validity of what
was done, if and when the latter is challenged in an appropriate
legal proceeding.
The instant petitions raise in the main the issue of the validity of
the filing of the second impeachment complaint against the Chief
Justice in accordance with the House Impeachment Rules adopted
by the 12th Congress, the constitutionality of which is questioned.
The questioned acts having been carried out, i.e., the second
impeachment complaint had been filed with the House of
Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged
unconstitutional act should be accomplished and performed before
suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the
instant petitions are premature. Amicus curiae former Senate
President Jovito R. Salonga opines that there may be no urgent
need for this Court to render a decision at this time, it being the
final arbiter on questions of constitutionality anyway. He thus
recommends that all remedies in the House and Senate should first
be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College
of Law who suggests to this Court to take judicial notice of on-going
attempts to encourage signatories to the second impeachment
complaint to withdraw their signatures and opines that the House
Impeachment Rules provide for an opportunity for members to
raise constitutional questions themselves when the Articles of
Impeachment are presented on a motion to transmit to the same to
the Senate. The dean maintains that even assuming that the
Articles are transmitted to the Senate, the Chief Justice can raise
the issue of their constitutional infirmity by way of a motion to
dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the
House Impeachment Rules of their constitutional infirmity. Neither
would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the
ambit of Sections 3(2) and (3) of Article XI of the Constitution[97]
and, therefore, petitioners would continue to suffer their injuries.

shown by the fact that, as previously discussed, neither the House

of Representatives nor the Senate is clothed with the power to rule
with definitiveness on the issue of constitutionality, whether
concerning impeachment proceedings or otherwise, as said power
is exclusively vested in the judiciary by the earlier quoted Section I,
Article VIII of the Constitution. Remedy cannot be sought from a
body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,[98] Chief Justice Roberto
Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum, it refers to "those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
[99] (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly
without any rhyme or reason, this Court vacillated on its stance of
taking cognizance of cases which involved political questions. In
some cases, this Court hid behind the cover of the political question
doctrine and refused to exercise its power of judicial review.[100] In
other cases, however, despite the seeming political nature of the
therein issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions
conferred upon political bodies.[101] Even in the landmark 1988
case of Javellana v. Executive Secretary[102] which raised the issue
of whether the 1973 Constitution was ratified, hence, in force, this
Court shunted the political question doctrine and took cognizance
thereof. Ratification by the people of a Constitution is a political
question, it being a question decided by the people in their
sovereign capacity.
The frequency with which this Court invoked the political question
doctrine to refuse to take jurisdiction over certain cases during the
Marcos regime motivated Chief Justice Concepcion, when he
became a Constitutional Commissioner, to clarify this Court's power
of judicial review and its application on issues involving political
questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.

Second and most importantly, the futility of seeking remedies from

either or both Houses of Congress before coming to this Court is

PALISOC & SARMIENTO

26 | P a g e

I will speak on the judiciary. Practically, everybody has made, I

suppose, the usual comment that the judiciary is the weakest
among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the
judiciary has nothing with which to enforce its decisions or
commands except the power of reason and appeal to conscience
which, after all, reflects the will of God, and is the most powerful of
all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first
and explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions
and got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is,
the authority of courts to order the release of political
detainees, and other matters related to the operation and
effect of martial law failed because the government set up
the defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but
it, in effect, encouraged further violations thereof during
the martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the Members of

PALISOC & SARMIENTO

the Commission who are not lawyers, allow me to explain. I will

start with a decision of the Supreme Court in 1973 on the case of
Javellana vs. the Secretary of Justice, if I am not mistaken. Martial
law was announced on September 22, although the proclamation
was dated September 21. The obvious reason for the delay in its
publication was that the administration had apprehended and
detained prominent newsmen on September 21. So that when
martial law was announced on September 22, the media hardly
published anything about it. In fact, the media could not publish
any story not only because our main writers were already
incarcerated, but also because those who succeeded them in their
jobs were under mortal threat of being the object of wrath of the
ruling party. The 1971 Constitutional Convention had begun on June
1, 1971 and by September 21 or 22 had not finished the
Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial
law, some delegates to that 1971 Constitutional Convention,
dozens of them, were picked up. One of them was our very own
colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacaang. In
17 days, they finished what the delegates to the 1971
Constitutional Convention had been unable to accomplish for about
14 months. The draft of the 1973 Constitution was presented to the
President around December 1, 1972, whereupon the President
issued a decree calling a plebiscite which suspended the operation
of some provisions in the martial law decree which prohibited
discussions, much less public discussions of certain matters of
public concern. The purpose was presumably to allow a free
discussion on the draft of the Constitution on which a plebiscite was
to be held sometime in January 1973. If I may use a word famous
by our colleague, Commissioner Ople, during the interregnum,
however, the draft of the Constitution was analyzed and criticized
with such a telling effect that Malacaang felt the danger of its
approval. So, the President suspended indefinitely the holding of
the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the
questions to be submitted in the referendum were not announced
until the eve of its scheduled beginning, under the supposed
supervision not of the Commission on Elections, but of what was
then designated as "citizens assemblies or barangays." Thus the
barangays came into existence. The questions to be propounded
were released with proposed answers thereto, suggesting that it
was unnecessary to hold a plebiscite because the answers given in
the referendum should be regarded as the votes cast in the
plebiscite. Thereupon, a motion was filed with the Supreme Court
praying that the holding of the referendum be suspended. When
the motion was being heard before the Supreme Court, the Minister

27 | P a g e

of Justice delivered to the Court a proclamation of the President

declaring that the new Constitution was already in force because
the overwhelming majority of the votes cast in the referendum
favored the Constitution. Immediately after the departure of the
Minister of Justice, I proceeded to the session room where the case
was being heard. I then informed the Court and the parties the
presidential proclamation declaring that the 1973 Constitution had
been ratified by the people and is now in force.

guaranteed by law but cannot be enforced by a judiciary party. In a

decided case, a husband complained that his wife was unwilling to
perform her duties as a wife. The Court said: "We can tell your wife
what her duties as such are and that she is bound to comply with
them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by
law, but they are so personal that to enforce them by actual
compulsion would be highly derogatory to human dignity."

A number of other cases were filed to declare the presidential

proclamation null and void. The main defense put up by the
government was that the issue was a political question and that the
court had no jurisdiction to entertain the case.

This is why the first part of the second paragraph of Section I

provides
that:

xxx
The government said that in a referendum held from January 10 to
January 15, the vast majority ratified the draft of the Constitution.
Note that all members of the Supreme Court were residents of
Manila, but none of them had been notified of any referendum in
their respective places of residence, much less did they participate
in the alleged referendum. None of them saw any referendum
proceeding.
In the Philippines, even local gossips spread like wild fire. So, a
majority of the members of the Court felt that there had been no
referendum.
Second, a referendum cannot substitute for a plebiscite. There is a
big difference between a referendum and a plebiscite. But
another group of justices upheld the defense that the issue
was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of
"political question" was set up. There have been a number
of other cases in the past.
x x x The defense of the political question was rejected
because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its
functions, it faced the following questions: What is judicial power?
What is a political question?
The Supreme Court, like all other courts, has one main function: to
settle actual controversies involving conflicts of rights which are
demandable and enforceable. There are rights which are

PALISOC & SARMIENTO

Judicial power includes the duty of courts to settle actual

controversies involving rights which are legally demandable or
enforceable . . .
The courts, therefore, cannot entertain, much less decide,
hypothetical
questions. In
a
presidential
system
of
government, the Supreme Court has, also another
important function. The powers of government are
generally considered divided into three branches: the
Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the
others. Because of that supremacy power to determine
whether a given law is valid or not is vested in courts of
justice.
Briefly stated, courts of justice determine the limits of
power of the agencies and offices of the government as well
as those of its officers. In other words, the judiciary is the
final arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as
to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this
nature.
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters
constitute a political question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the subject
of the judiciary.[103] (Italics in the original; emphasis supplied)

28 | P a g e

During the deliberations of the Constitutional Commission, Chief

Justice Concepcion further clarified the concept of judicial power,
thus:
MR. NOLLEDO. The Gentleman used the term "judicial
power" but judicial power is not vested in the Supreme
Court alone but also in other lower courts as may be
created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman
seems to identify political questions with jurisdictional
questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether
the government had authority or had abused its authority
to the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the
duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided
by the Supreme Court according to the new numerical need for
votes.
On another point, is it the intention of Section 1 to do away
with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse
of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not
intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it

define what is judicial power. But the Gentleman
it says, "judicial power includes" and the reason
the definition that we might make may not
possible areas.

sought to
will notice
being that
cover all

FR. BERNAS. So, this is not an attempt to solve the

problems arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact
that truly political questions are beyond the pale of judicial
power.[104] (Emphasis supplied)
From the foregoing record of the proceedings of the 1986
Constitutional Commission, it is clear that judicial power is not only
a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine.
Chief Justice Concepcion hastened to clarify, however, that Section
1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions" and (2)
those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason
for respect of the doctrine of separation of powers to be
maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly
political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the
UP College of Law, this Court has in fact in a number of cases taken
jurisdiction over questions which are not truly political following the
effectivity of the present Constitution.
In Marcos v. Manglapus,[105] this Court, speaking through Madame
Justice
Irene
Cortes,
held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to
the political departments to decide.[106] x x x
In Bengzon v. Senate Blue Ribbon Committee,[107] through Justice
Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held in a

PALISOC & SARMIENTO

29 | P a g e

recent case, "(t)he political question doctrine neither

interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability
of the principle in appropriate cases."[108] (Emphasis and
underscoring supplied)

the presence of one strengthens the conclusion that the others are
also present.

And in Daza v. Singson,[109] speaking through Justice Isagani Cruz,

this Court ruled:

In our jurisdiction, the determination of a truly political question

from a non-justiciable political question lies in the answer to the
question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present
controversy.

In the case now before us, the jurisdictional objection becomes

even less tenable and decisive. The reason is that, even if we were
to assume that the issue presented before us was political in
nature, we would still not be precluded from resolving it under
the expandedjurisdiction conferred upon us that now covers, in
proper cases, even the political question.[110] x x x (Emphasis and
underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are
justiciable political questions and non-justiciable political questions,
however. Identification of these two species of political questions
may be problematic. There has been no clear standard. The
American case of Baker v. Carr[111] attempts to provide some:

The problem in applying the foregoing standards is that the

American concept of judicial review is radically different from our
current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether
they should pass upon a constitutional issue.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment
complaint constitute valid impeachable offenses under the
Constitution.
II. Whether the second impeachment complaint was filed in
accordance with Section 3(4), Article XI of the Constitution.

x x x Prominent on the surface of any case held to involve a

political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a
political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.[112] (Underscoring supplied)

III. Whether the legislative inquiry by the House Committee on

Justice into the Judicial Development Fund is an unconstitutional
infringement of the constitutionally mandated fiscal autonomy of
the judiciary.

Of these standards, the more reliable have been the first three: (1)
a textually demonstrable constitutional commitment of the issue to
a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the
impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion. These standards are not
separate and distinct concepts but are interrelated to each in that

The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More
importantly, any discussion of this issue would require this Court to
make a determination of what constitutes an impeachable offense.
Such a determination is a purely political question which the
Constitution has left to the sound discretion of the legislation. Such
an intent is clear from the deliberations of the Constitutional
Commission.[113]

PALISOC & SARMIENTO

IV. Whether Sections 15 and 16 of Rule V of the Rules on

Impeachment adopted by the 12th Congress are unconstitutional
for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under
Section 3(5) of Article XI of the Constitution.

30 | P a g e

controversy.
Although Section 2 of Article XI of the Constitution enumerates six
grounds for impeachment, two of these, namely, other high crimes
and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission
shows that the framers could find no better way to approximate the
boundaries of betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.
[114] Clearly, the issue calls upon this court to decide a nonjusticiable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided
whenever possible. Thus, in the case of Sotto v. Commission on
Elections,[115]
this
Court
held:
x x x It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional or
invalid, unless such question is raised by the parties and that when
it is raised, if the record also presents some other ground upon
which the court may rest its judgment, that course will be adopted
and the constitutional question will be left for consideration until a
case arises in which a decision upon such question will be
unavoidable.[116] [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform,[117] where this Court invalidated Sections 13 and
32 of Republic Act No. 6657 for being confiscatory and violative of
due
process,
to
wit:
It has been established that this Court will assume jurisdiction over
a constitutional question only if it is shown that the essential
requisites of a judicial inquiry into such a question are first
satisfied. Thus, there must be an actual case or controversy
involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution
of the question is unavoidably necessary to the decision of
the case itself.[118] [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality
unless it is truly unavoidable and is the very lis mota or crux of the

PALISOC & SARMIENTO

As noted earlier, the instant consolidated petitions, while all

seeking the invalidity of the second impeachment complaint,
collectively raise several constitutional issues upon which the
outcome of this controversy could possibly be made to rest. In
determining whether one, some or all of the remaining substantial
issues should be passed upon, this Court is guided by the related
cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to
which it is applied."[119]
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that,
among other reasons, the second impeachment complaint is invalid
since it directly resulted from a Resolution[120] calling for a
legislative inquiry into the JDF, which Resolution and legislative
inquiry petitioners claim to likewise be unconstitutional for being:
(a) a violation of the rules and jurisprudence on investigations in
aid of legislation; (b) an open breach of the doctrine of separation
of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence
of the judiciary.[121]
Without going into the merits of petitioners Alfonso, et. al.'s claims,
it is the studied opinion of this Court that the issue of the
constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the
second impeachment complaint. Moreover, the resolution of said
issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of
legislative inquiries in general, which would thus be broader than is
required by the facts of these consolidated cases. This opinion is
further strengthened by the fact that said petitioners have raised
other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of
legislative inquiries has already been enunciated by this Court in
Bengzon, Jr. v. Senate Blue Ribbon Commttee,[122] viz:
The 1987 Constitution expressly recognizes the power of both
houses of Congress to conduct inquiries in aid of legislation. Thus,
Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of

31 | P a g e

persons appearing in or affected by such inquiries shall be

respected.
The power of both houses of Congress to conduct inquiries in aid of
legislation is not, therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution.
Thus, as provided therein, the investigation must be "in aid of
legislation in accordance with its duly published rules of procedure"
and that "the rights of persons appearing in or affected by such
inquiries shall be respected." It follows then that the right rights of
persons under the Bill of Rights must be respected, including the
right to due process and the right not be compelled to testify
against one's self.[123]
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete
Quirino Quadra, while joining the original petition of petitioners
Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by
Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella,
the same does not fall under the provisions of Section 3 (4), Article
XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members of the
House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of
Representatives signed a Resolution of Endorsement/Impeachment,
the same did not satisfy the requisites for the application of the
afore-mentioned section in that the "verified complaint or
resolution of impeachment" was not filed "by at least one-third of
all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said
Resolution are alleged to have verified the same merely as a
"Resolution of Endorsement." Intervenors point to the "Verification"
of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement
of the abovementioned Complaint of Representatives Gilberto
Teodoro and Felix William B. Fuentebella x x x"[124]
Intervenors Macalintal and Quadra further claim that what the
Constitution requires in order for said second impeachment
complaint to automatically become the Articles of Impeachment
and for trial in the Senate to begin "forthwith," is that
the verified complaint be "filed," not merely endorsed, by at least

PALISOC & SARMIENTO

one-third of the Members of the House of Representatives. Not

having complied with this requirement, they concede that the
second impeachment complaint should have been calendared and
referred to the House Committee on Justice under Section 3(2),
Article
XI
of
the
Constitution,
viz:
Section 3(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any citizen upon
a resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of
all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by
the House within ten session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who
opined that for Section 3 (4), Article XI of the Constitution to apply,
there should be 76 or more representatives who signed and verified
the second impeachment complaint as complainants, signed and
verified the signatories to a resolution of impeachment. Justice
Maambong
likewise
asserted
that
the
Resolution
of
Endorsement/Impeachment signed by at least one-third of the
members of the House of Representatives as endorsers is not the
resolution of impeachment contemplated by the Constitution, such
resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment
complaint.
While the foregoing issue, as argued by intervenors Macalintal and
Quadra, does indeed limit the scope of the constitutional issues to
the provisions on impeachment, more compelling considerations
militate against its adoption as the lis mota or crux of the present
controversy. Chief among this is the fact that only Attorneys
Macalintal and Quadra, intervenors in G.R. No. 160262, have raised
this issue as a ground for invalidating the second impeachment
complaint. Thus, to adopt this additional ground as the basis for
deciding the instant consolidated petitions would not only render
for naught the efforts of the original petitioners in G.R. No. 160262,
but the efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as
unnecessary for the determination of the instant cases is made
easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's

32 | P a g e

arguments and issues as their own. Consequently, they are not

unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably
linked as they are, constitute the very lis mota of the instant
controversy: (1) whether Sections 15 and 16 of Rule V of the House
Impeachment Rules adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3, Article XI
of the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on
the ground that the Senate, sitting as an impeachment court, has
the sole power to try and decide all cases of impeachment. Again,
this Court reiterates that the power of judicial review includes the
power of review over justiciable issues in impeachment
proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue
that "[t]here is a moral compulsion for the Court to not assume
jurisdiction over the impeachment because all the Members thereof
are subject to impeachment."[125] But this argument is very much
like saying the Legislature has a moral compulsion not to pass laws
with penalty clauses because Members of the House of
Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an
option before this Court. Adjudication may not be declined, because
this Court is not legally disqualified. Nor can jurisdiction be
renounced as there is no other tribunal to which the controversy
may be referred."[126] Otherwise, this Court would be shirking
from its duty vested under Art. VIII, Sec. 1(2) of the Constitution.
More than being clothed with authority thus, this Court is dutybound to take cognizance of the instant petitions.[127] In the
august words of amicus curiae Father Bernas, "jurisdiction is not
just a power; it is a solemn duty which may not be renounced. To
renounce it, even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our
system of government cannot inhibit itself and must rule upon the
challenge because no other office has the authority to do so.[128]
On the occasion that this Court had been an interested party to the
controversy before it, it has acted upon the matter "not with
officiousness but in the discharge of an unavoidable duty and, as

PALISOC & SARMIENTO

always, with detachment and fairness."[129] After all, "by [his]

appointment to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally fit to
pass upon the merits of their varied contentions. For this reason,
they expect [him] to be fearless in [his] pursuit to render justice, to
be unafraid to displease any person, interest or power and to be
equipped with a moral fiber strong enough to resist the temptations
lurking in [his] office."[130]
The duty to exercise the power of adjudication regardless of
interest had already been settled in the case of Abbas v. Senate
Electoral Tribunal.[131] In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or
Inhibition of the Senators-Members thereof from the hearing and
resolution of SET Case No. 002-87 on the ground that all of them
were interested parties to said case as respondents therein. This
would have reduced the Tribunal's membership to only its three
Justices-Members whose disqualification was not sought, leaving
them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of his other
colleagues in the Senate without inviting the same objections to the
substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but
to abandon a duty that no other court or body can perform, but
which it cannot lawfully discharge if shorn of the participation of its
entire membership of Senators.
To our mind, this is the overriding consideration - that the Tribunal
be not prevented from discharging a duty which it alone has the
power to perform, the performance of which is in the highest public
interest as evidenced by its being expressly imposed by no less
than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all Senatorselect, six of whom would inevitably have to sit in judgment thereon.
Indeed, such possibility might surface again in the wake of the
1992 elections when once more, but for the last time, all 24 seats
in the Senate will be at stake. Yet the Constitution provides no
scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose
disqualification may be sought. Litigants in such situations must
simply place their trust and hopes of vindication in the fairness and

33 | P a g e

sense of justice of the Members of the Tribunal. Justices and

Senators, singly and collectively.

friendly suit, a party beaten in the legislature could transfer to the

courts an inquiry as to the constitutionality of the legislative act.'

Let us not be misunderstood as saying that no Senator-Member of

the Senate Electoral Tribunal may inhibit or disqualify himself from
sitting in judgment on any case before said Tribunal. Every Member
of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels
that his personal interests or biases would stand in the way of an
objective and impartial judgment. What we are merely saying is
that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of
Senators and that no amendment of its Rules can confer on the
three Justices-Members alone the power of valid adjudication of a
senatorial election contest.

2. The Court will not 'anticipate a question of constitutional law in

advance of the necessity of deciding it.' . . . 'It is not the habit of
the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.'

More recently in the case of Estrada v. Desierto,[132] it was

held
that:
Moreover, to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro tanto
depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his
judicial power. And if that judge is the one designated by the
Constitution to exercise the jurisdiction of his court, as is the case
with the Justices of this Court, the deprivation of his or their judicial
power is equivalent to the deprivation of the judicial power of the
court itself. It affects the very heart of judicial independence. The
proposed mass disqualification, if sanctioned and ordered, would
leave the Court no alternative but to abandon a duty which it
cannot lawfully discharge if shorn of the participation of its entire
membership
of
Justices.[133]
(Italics
in
the
original)
Besides, there are specific safeguards already laid down by the
Court when it exercises its power of judicial review.
In Demetria v. Alba,[134] this Court, through Justice Marcelo Fernan
cited the "seven pillars" of limitations of the power of judicial
review, enunciated by US Supreme Court Justice Brandeis in
Ashwander v. TVA[135] as follows:
1. The Court will not pass upon the constitutionality of legislation in
a friendly, non-adversary proceeding, declining because to decide
such questions 'is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy
between individuals. It never was the thought that, by means of a

PALISOC & SARMIENTO

3. The Court will not 'formulate a rule of constitutional law broader

than is required by the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some
other ground upon which the case may be disposed of. This rule
has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the
Court will decide only the latter. Appeals from the highest court of a
state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be
sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is more
striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official
interested only in the performance of his official duty will not be
entertained . . . In Fairchild v. Hughes, the Court affirmed the
dismissal of a suit brought by a citizen who sought to have the
Nineteenth
Amendment
declared
unconstitutional.
In
Massachusetts v. Mellon, the challenge of the federal Maternity Act
was not entertained although made by the Commonwealth on
behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question,
and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question
may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States
Supreme Court, can be encapsulated into the following categories:

34 | P a g e

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as
required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of
the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this
Court
in
the
exercise
of
judicial
review:
1. actual case or controversy calling for the exercise of judicial
power
2. the person challenging the act must have "standing" to
challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement
3. the question of constitutionality must be raised at the earliest
possible opportunity
4. the issue of constitutionality must be the very lis mota of the
case.[136]
Respondents Speaker de Venecia, et. al. raise another argument for
judicial restraint the possibility that "judicial review of
impeachments might also lead to embarrassing conflicts between
the Congress and the [J]udiciary." They stress the need to avoid the
appearance of impropriety or conflicts of interest in judicial
hearings, and the scenario that it would be confusing and
humiliating and risk serious political instability at home and abroad
if the judiciary countermanded the vote of Congress to remove an
impeachable official.[137] Intervenor Soriano echoes this argument
by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial
authority and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As
correctly stated by the Solicitor General, the possibility of the

PALISOC & SARMIENTO

occurrence of a constitutional crisis is not a reason for this Court to

refrain from upholding the Constitution in all impeachment cases.
Justices cannot abandon their constitutional duties just because
their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court
refuses to act.
x x x Frequently, the fight over a controversial legislative or
executive act is not regarded as settled until the Supreme Court
has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political
consequences. Those political consequences may follow even
where the Court fails to grant the petitioner's prayer to nullify an
act for lack of the necessary number of votes. Frequently, failure to
act explicitly, one way or the other, itself constitutes a decision for
the respondent and validation, or at least quasi-validation, follows."
[138]
Thus, in Javellana v. Executive Secretary[139] where this Court was
split and "in the end there were not enough votes either to grant
the petitions, or to sustain respondent's claims,"[140] the preexisting constitutional order was disrupted which paved the way for
the establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes
that the coordinate branches of the government would behave in a
lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason to
believe that any of the branches of government will behave in a
precipitate manner and risk social upheaval, violence, chaos and
anarchy by encouraging disrespect for the fundamental law of the
land.
Substituting the word public officers for judges, this Court is well
guided by the doctrine in People v. Veneracion, to wit:[141]
Obedience to the rule of law forms the bedrock of our system of
justice. If [public officers], under the guise of religious or political
beliefs were allowed to roam unrestricted beyond boundaries within
which they are required by law to exercise the duties of their office,
then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, [public officers] are guided
by the Rule of Law, and ought "to protect and enforce it without
fear or favor," resist encroachments by governments, political
parties, or even the interference of their own personal beliefs.[142]

35 | P a g e

Constitutionality of the Rules of Procedure for

Proceedings adopted by the 12th Congress

Impeachment

Respondent House of Representatives, through Speaker De

Venecia, argues that Sections 16 and 17 of Rule V of the House
Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not
mean "to file;" that Section 3 (1) is clear in that it is the House of
Representatives, as a collective body, which has the exclusive
power to initiate all cases of impeachment; that initiate could not
possibly mean "to file" because filing can, as Section 3 (2), Article
XI of the Constitution provides, only be accomplished in 3 ways, to
wit: (1) by a verified complaint for impeachment by any member of
the House of Representatives; or (2) by any citizen upon a
resolution of endorsement by any member; or (3) by at least 1/3 of
all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the
initiation of impeachment proceedings against the same officials
could not have been violated as the impeachment complaint
against Chief Justice Davide and seven Associate Justices had not
been initiated as the House of Representatives, acting as
the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the
term "initiate." Resort to statutory construction is, therefore, in
order.
That the sponsor of the provision of Section 3(5) of the
Constitution, Commissioner Florenz Regalado, who eventually
became an Associate Justice of this Court, agreed on the meaning
of "initiate" as "to file," as proffered and explained by Constitutional
Commissioner Maambong during the Constitutional Commission
proceedings, which he (Commissioner Regalado) as amicus curiae
affirmed during the oral arguments on the instant petitions held on
November 5, 2003 at which he added that the act of "initiating"
included the act of taking initial action on the complaint, dissipates
any doubt that indeed the word "initiate" as it twice appears in
Article XI (3) and (5) of the Constitution means to file the complaint
and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as
dictionaries do, to begin, to commence, or set going. As Webster's
Third New International Dictionary of the English Language
concisely puts it, it means "to perform or facilitate the first action,"
which jibes with Justice Regalado's position, and that of Father

PALISOC & SARMIENTO

Bernas, who elucidated during the oral arguments of the instant

petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a
comlexus of acts consisting of a beginning, a middle and an end.
The end is the transmittal of the articles of impeachment to the
Senate. The middle consists of those deliberative moments leading
to the formulation of the articles of impeachment. The beginning or
the initiation is the filing of the complaint and its referral to the
Committee on Justice.
Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that impeachment
is "deemed initiated" when the Justice Committee votes in favor
of impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The
language is recognition that initiation happened earlier, but by
legal fiction there is an attempt to postpone it to a time after actual
initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution
is looking into the intent of the law. Fortunately, the intent of the
framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the
procedure and the substantive provisions on impeachment, I
understand there have been many proposals and, I think, these
would need some time for Committee action.
However, I would just like to indicate that I submitted to the
Committee a resolution on impeachment proceedings, copies of
which have been furnished the Members of this body. This is borne
out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last
impeachment resolution filed before the First Batasang
Pambansa. For the information of the Committee, the
resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker
committee action, calendaring of report, voting on the
report, transmittal referral to the Senate, trial and
judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my thinking

36 | P a g e

that we do not really initiate the filing of the Articles of

Impeachment on the floor. The procedure, as I have pointed
out earlier, was that the initiation starts with the filing of
the complaint. And what is actually done on the floor is that
the committee resolution containing the Articles of
Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on the floor.
If we only have time, I could cite examples in the case of the
impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the
resolution, and the Articles of Impeachment to the body, and it was
the body who approved the resolution. It is not the body which
initiates it. It only approves or disapproves the resolution.
So, on that score, probably the Committee on Style could help in
rearranging these words because we have to be very technical
about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with
me. The proceedings on the case of Richard Nixon are with me. I
have submitted my proposal, but the Committee has already
decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of
the approval of Section 3 (3). My reconsideration will not at all
affect the substance, but it is only in keeping with the exact
formulation of the Rules of the House of Representatives of the
United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of
this provision, that on page 2, Section 3 (3), from lines 17 to 18,x"
and the comma (,) and insert on line 19 after the word "resolution"
the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the
whole section will now read: "A vote of at least one-third of all the
Members of the House shall be necessary either to affirm a
resolution WITH THE ARTICLES of Impeachment OF the Committee
or to override its contrary resolution. The vote of each Member
shall be recorded."
I already mentioned earlier yesterday that the initiation, as
far as the House of Representatives of the United States is
concerned, really starts from the filing of the verified
complaint and every resolution to impeach always carries with it
the Articles of Impeachment. As a matter of fact, the words
"Articles of Impeachment" are mentioned on line 25 in the case of

PALISOC & SARMIENTO

the direct filing of a verified compliant of one-third of all the

Members of the House. I will mention again, Madam President, that
my amendment will not vary the substance in any way. It is only in
keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam
President.[143] (Italics in the original; emphasis and udnerscoring
supplied)
This amendment proposed by Commissioner Maambong was
clarified and accepted by the Committee on the Accountability of
Public Officers.[144]
It is thus clear that the framers intended "initiation" to start with
the filing of the complaint. In his amicus curiae brief, Commissioner
Maambong explained that "the obvious reason in deleting the
phrase "to initiate impeachment proceedings" as contained in
the text of the provision of Section 3 (3) was to settle and make
it understood once and for all that the initiation of
impeachment proceedings starts with the filing of the
complaint, and the vote of one-third of the House in a resolution of
impeachment does
not
initiate the
impeachment
proceedings which was already initiated by the filing of a
verified complaint under Section 3, paragraph (2), Article XI
of the Constitution."[145]
Amicus curiae Constitutional Commissioner Regalado is of the same
view as is Father Bernas, who was also a member of the 1986
Constitutional Commission, that the word "initiate" as used in
Article XI, Section 3(5) means to file, both adding, however, that
the filing must be accompanied by an action to set the complaint
moving.
During the oral arguments before this Court, Father Bernas clarified
that the word "initiate," appearing in the constitutional provision on
impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive
power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year, (Emphasis
supplied) refers to two objects, "impeachment case" and
"impeachment proceeding."

37 | P a g e

Father Bernas explains that in these two provisions, the common

verb is "to initiate." The object in the first sentence is
"impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle of reddendo
singuala sinuilis, the term "cases" must be distinguished from the
term "proceedings." An impeachment case is the legal controversy
that must be decided by the Senate. Above-quoted first provision
provides that the House, by a vote of one-third of all its members,
can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No
other body can do it. However, before a decision is made to initiate
a case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other
hand, proceeding is a progressive noun. It has a beginning, a
middle, and an end. It takes place not in the Senate but in the
House and consists of several steps: (1) there is the filing of a
verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of
the House of the Representatives; (2) there is the processing of this
complaint by the proper Committee which may either reject the
complaint or uphold it; (3) whether the resolution of the Committee
rejects or upholds the complaint, the resolution must be forwarded
to the House for further processing; and (4) there is the processing
of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides
a contrary resolution by a vote of one-third of all the members. If at
least one third of all the Members upholds the complaint, Articles of
Impeachment are prepared and transmitted to the Senate. It is at
this point that the House "initiates an impeachment case." It is at
this point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is
not initiated when the complaint is transmitted to the Senate for
trial because that is the end of the House proceeding and the
beginning of another proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the House deliberates on
the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the
House is already a further step in the proceeding, not its initiation
or beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of
steps that follow.

PALISOC & SARMIENTO

The framers of the Constitution also understood initiation in its

ordinary meaning. Thus when a proposal reached the floor
proposing that "A vote of at least one-third of all the Members of
the House shall be necessary... to initiate impeachment
proceedings," this was met by a proposal to delete the line on the
ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does.[146] Thus the
line was deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No
impeachment proceeding shall be initiated against the same official
more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the
Committee on Justice for action. By his explanation, this
interpretation is founded on the common understanding of the
meaning of "to initiate" which means to begin. He reminds that the
Constitution is ratified by the people, both ordinary and
sophisticated, as they understand it; and that ordinary people read
ordinary meaning into ordinary words and not abstruse meaning,
they ratify words as they understand it and not as sophisticated
lawyers confuse it.
To the argument that only the House of Representatives as a body
can initiate impeachment proceedings because Section 3 (1) says
"The House of Representatives shall have the exclusive power to
initiate all cases of impeachment," This is a misreading of said
provision and is contrary to the principle of reddendo singula
singulis by equating "impeachment cases" with "impeachment
proceeding."
From the records of the Constitutional Commission, to the amicus
curiae briefs of two former Constitutional Commissioners, it is
without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action
of said complaint.
Having concluded that the initiation takes place by the act of filing
and referral or endorsement of the impeachment complaint to the
House Committee on Justice or, by the filing by at least one-third of
the members of the House of Representatives with the Secretary
General of the House, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the same
official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment
Rules, impeachment proceedings are deemed initiated (1) if there

38 | P a g e

is a finding by the House Committee on Justice that the verified

complaint and/or resolution is sufficient in substance, or (2) once
the House itself affirms or overturns the finding of the Committee
on Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement before
the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3 (5)
of Article XI since the rules give the term "initiate" a meaning
different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this
Court could not use contemporaneous construction as an aid in the
interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino[147]
wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the
matter at issue expressed during this Court's our deliberations
stand on a different footing from the properly recorded utterances
of debates and proceedings." Further citing said case, he states
that this Court likened the former members of the Constitutional
Convention to actors who are so absorbed in their emotional roles
that intelligent spectators may know more about the real meaning
because
of
the
latter's
balanced
perspectives
and
disinterestedness. [148]
Justice Gutierrez's statements have no application in the present
petitions. There are at present only two members of this Court who
participated in the 1986 Constitutional Commission - Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken
part in these proceedings for obvious reasons. Moreover, this Court
has not simply relied on the personal opinions now given by
members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section
3 (8) of Article XI, it is clear and unequivocal that it and only it has
the power to make and interpret its rules governing impeachment.
Its argument is premised on the assumption that Congress has
absolute power to promulgate its rules. This assumption, however,
is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall
promulgate its rules on impeachment to effectively carry out the
purpose of this section." Clearly, its power to promulgate its rules
on impeachment is limited by the phrase "to effectively carry out
the purpose of this section." Hence, these rules cannot contravene
the very purpose of the Constitution which said rules were intended

PALISOC & SARMIENTO

to effectively carry out. Moreover, Section 3 of Article XI clearly

provides for other specific limitations on its power to make rules,
viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of
all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by
the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall
be necessary to either affirm a favorable resolution with the Articles
of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is
filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which
is the fundamental law. If as alleged Congress had absolute rule
making power, then it would by necessary implication have the
power to alter or amend the meaning of the Constitution without
need of referendum.
In Osmea v. Pendatun,[149] this Court held that it is within the
province of either House of Congress to interpret its rules and that
it was the best judge of what constituted "disorderly behavior" of
its members. However, in Paceta v. Secretary of the Commission on
Appointments,[150] Justice (later Chief Justice) Enrique Fernando,
speaking for this Court and quoting Justice Brandeis in United
States v. Smith,[151] declared that where the construction to be
given to a rule affects persons other than members of the
Legislature, the question becomes judicial in nature. In Arroyo v. De
Venecia,[152] quoting United States v. Ballin, Joseph & Co.,[153]
Justice Vicente Mendoza, speaking for this Court, held that while

39 | P a g e

the Constitution empowers each house to determine its rules of

proceedings, it may not by its rules ignore constitutional restraints
or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be
attained. It is only within these limitations that all matters of
method are open to the determination of the Legislature. In the
same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his
Concurring and Dissenting Opinion, was even more emphatic as he
stressed that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by
the petitioner are non-justiciable. Nor do I agree that we
will trivialize the principle of separation of power if we
assume jurisdiction over he case at bar. Even in the United
States, the principle of separation of power is no longer an
impregnable impediment against the interposition of
judicial power on cases involving breach of rules of
procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1)
as a window to view the issues before the Court. It is in Ballin where
the US Supreme Court first defined the boundaries of the power of
the judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house
may determine the rules of its proceedings." It appears that in
pursuance of this authority the House had, prior to that day, passed
this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the
Speaker, the names of members sufficient to make a quorum in the
hall of the House who do not vote shall be noted by the clerk and
recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in
determining the presence of a quorum to do business. (House
Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The
question, therefore, is as to the validity of this rule, and not

PALISOC & SARMIENTO

what methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the
Speaker or clerk may of their own volition place upon the journal.
Neither do the advantages or disadvantages, the wisdom or folly, of
such a rule present any matters for judicial consideration. With the
courts the question is only one of power. The Constitution
empowers each house to determine its rules of
proceedings. It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should
be a reasonable relation between the mode or method of
proceedings established by the rule and the result which is
sought to be attained. But within these limitations all matters of
method are open to the determination of the House, and it is no
impeachment of the rule to say that some other way would be
better, more accurate, or even more just. It is no objection to the
validity of a rule that a different one has been prescribed and in
force for a length of time. The power to make rules is not one which
once exercised is exhausted. It is a continuous power, always
subject to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body or
tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass
upon the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was found
to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its
method had a reasonable relationship with the result sought to be
attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle
of separation of powers.[154]
xxx
In the Philippine setting, there is a more compelling reason
for courts to categorically reject the political question
defense when its interposition will cover up abuse of power.
For section 1, Article VIII of our Constitution was
intentionally cobbled to empower courts "x x x to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935 and
1972 Constitutions.It was not also xeroxed from the US
Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of

40 | P a g e

state power were shielded from judicial scrutiny by the

misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM expanded
and sharpened the checking powers of the judiciary vis- -vis the
Executive and the Legislative departments of government.[155]
xxx
The Constitution cannot be any clearer. What it granted to this
Court is not a mere power which it can decline to exercise.
Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of
a branch or instrumentality of government or any of its
officials done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court
against the other branches of government despite their more
democratic character, the President and the legislators being
elected by the people.[156]
xxx
The provision defining judicial power as including the 'duty of the
courts of justice. . . to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government' constitutes the capstone of the efforts of the
Constitutional Commission to upgrade the powers of this court visa-vis the other branches of government. This provision was dictated
by our experience under martial law which taught us that a
stronger and more independent judiciary is needed to abort abuses
in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul
acts of government committed with grave abuse of discretion, the
new Constitution transformed this Court from passivity to activism.
This transformation, dictated by our distinct experience as nation,
is not merely evolutionary but revolutionary. Under the 1935 and
the 1973 Constitutions, this Court approached constitutional
violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress - this Court is
mandated to approach constitutional violations not by
finding out what it should not do but what it must do. The
Court must discharge this solemn duty by not resuscitating a past
that petrifies the present.

PALISOC & SARMIENTO

I urge my brethren in the Court to give due and serious

consideration to this new constitutional provision as the case at bar
once more calls us to define the parameters of our power to review
violations of the rules of the House. We will not be true to our
trust as the last bulwark against government abuses if we
refuse to exercise this new power or if we wield it with
timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if
not defy, orders of our courts. In Tolentino, I endorsed the view
of former Senator Salonga that this novel provision stretching the
latitude of judicial power is distinctly Filipino and its interpretation
should not be depreciated by undue reliance on inapplicable foreign
jurisprudence. In resolving the case at bar, the lessons of our own
history should provide us the light and not the experience of
foreigners.[157] (Italics in the original emphasis and underscoring
supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the
instant petitions. Here, the third parties alleging the violation of
private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v.
US[158] as basis for arguing that this Court may not decide on the
constitutionality of Sections 16 and 17 of the House Impeachment
Rules. As already observed, the U.S. Federal Constitution simply
provides that "the House of Representatives shall have the sole
power of impeachment." It adds nothing more. It gives no clue
whatsoever as to how this "sole power" is to be exercised. No
limitation whatsoever is given. Thus, the US Supreme Court
concluded that there was a textually demonstrable constitutional
commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to
impeachment power of the Philippine House of Representatives
since our Constitution, as earlier enumerated, furnishes several
provisions articulating how that "exclusive power" is to be
exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment proceedings are
deemed initiated (1) if there is a finding by the House Committee
on Justice that the verified complaint and/or resolution is sufficient
in substance, or (2) once the House itself affirms or overturns the
finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or

41 | P a g e

endorsement before the Secretary-General of the House of

Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term
"initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing
of the impeachment complaint and referral to the House
Committee on Justice, the initial action taken thereon, the meaning
of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated in the foregoing manner, another may
not be filed against the same official within a one year period
following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed
by former President Estrada against Chief Justice Hilario G. Davide,
Jr., along with seven associate justices of this Court, on June 2,
2003 and referred to the House Committee on Justice on August 5,
2003, the second impeachment complaint filed by Representatives
Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the
Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is
always a phenomenon that takes the center stage of our individual
and collective consciousness as a people with our characteristic
flair for human drama, conflict or tragedy. Of course this is not to
demean the seriousness of the controversy over the Davide
impeachment. For many of us, the past two weeks have proven to
be an exasperating, mentally and emotionally exhausting
experience. Both sides have fought bitterly a dialectical struggle to
articulate what they respectively believe to be the correct position
or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the
Chief Justice, took to the streets armed with their familiar slogans
and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and
denominations of faith - offered suggestions for a return to a state
of normalcy in the official relations of the governmental branches
affected to obviate any perceived resulting instability upon areas of
national life.

PALISOC & SARMIENTO

Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically
asked, told, urged and argued to take no action of any kind and
form with respect to the prosecution by the House of
Representatives of the impeachment complaint against the subject
respondent public official. When the present petitions were
knocking so to speak at the doorsteps of this Court, the same
clamor for non-interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and "judicial
self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far
as the question of the constitutionality of initiating the
impeachment complaint against Chief Justice Davide is concerned.
To reiterate what has been already explained, the Court found the
existence in full of all the requisite conditions for its exercise of its
constitutionally vested power and duty of judicial review over an
issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land.
What lies in here is an issue of a genuine constitutional material
which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers
under our system of government. Face-to-face thus with a matter
or problem that squarely falls under the Court's jurisdiction, no
other course of action can be had but for it to pass upon that
problem head on.
The claim, therefore, that this Court by judicially entangling itself
with the process of impeachment has effectively set up a regime of
judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and
resolved on the merits only the main issue of whether the
impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule.
Beyond this, it did not go about assuming jurisdiction where it had
none, nor indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of this Court
to assert judicial dominance over the other two great branches of
the government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of their
own powers to bring about ultimately the beneficent effects of
having founded and ordered our society upon the rule of law.

42 | P a g e

It is suggested that by our taking cognizance of the issue of

constitutionality of the impeachment proceedings against the Chief
Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said
issue is as much at stake as is that of the Chief Justice. Nothing
could be farther from the truth.
The institution that is the Supreme Court together with all other
courts has long held and been entrusted with the judicial power to
resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice
over the course of time, unaffected by whomsoever stood to
benefit or suffer therefrom, unfraid by whatever imputations or
speculations could be made to it, so long as it rendered judgment
according to the law and the facts. Why can it not now be trusted
to wield judicial power in these petitions just because it is the
highest ranking magistrate who is involved when it is an
incontrovertible fact that the fundamental issue is not him but the
validity of a government branch's official act as tested by the limits
set by the Constitution? Of course, there are rules on the inhibition
of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution now from
the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is
simply a non sequitur.

through this crucible of a democratic process, if only to discover

that it can resolve differences without the use of force and
aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of
Procedure in Impeachment Proceedings which were approved by
the House of Representatives on November 28, 2001 are
unconstitutional.
Consequently,
the
second
impeachment
complaint against Chief Justice Hilario G. Davide, Jr. which was filed
by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of
Representatives on October 23, 2003 is barred under paragraph 5,
section 3 of Article XI of the Constitution.
SO ORDERED.

No one is above the law or the Constitution. This is a basic precept

in any legal system which recognizes equality of all men before the
law as essential to the law's moral authority and that of its agents
to secure respect for and obedience to its commands. Perhaps,
there is no other government branch or instrumentality that is most
zealous in protecting that principle of legal equality other than the
Supreme Court which has discerned its real meaning and
ramifications through its application to numerous cases especially
of the high-profile kind in the annals of jurisprudence. The Chief
Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that
he gets to have less in law than anybody else. The law is solicitous
of every individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt
been put to test once again by this impeachment case against
Chief Justice Hilario Davide. Accordingly, this Court has resorted to
no other than the Constitution in search for a solution to what many
feared would ripen to a crisis in government. But though it is
indeed immensely a blessing for this Court to have found answers
in our bedrock of legal principles, it is equally important that it went

PALISOC & SARMIENTO

43 | P a g e

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT

SERVICE
INSURANCE
SYSTEM,
MANILA
HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE
OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
G.R. No. 122156 | 1997-02-03

a. The Highest Bidder must negotiate and execute with the

GSIS/MHC
the
Management
Contract,
International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel . . . .

DECISION

b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .

BELLOSILLO, J:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in
the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference to
qualified Filipinos, 1 is invoked by petitioner in its bid to acquire
51% of the shares of the Manila Hotel Corporation (MHC) which
owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask
whether the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service
Insurance System (GSIS), pursuant to the privatization program of
the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51%
of the issued and outstanding shares of respondent MHC. The
winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/
reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel. 2 In a close
bidding held on 18 September 1995 only two (2) bidders
participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000
shares at P41.58 per share, and Renong Berhad, a Malaysian firm,
with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid
of petitioner.
Pertinent provisions of the bidding rules prepared by respondent
GSIS state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth
below by October 23, 1995 (reset to November 3, 1995) or the
Highest Bidder will lose the right to purchase the Block of Shares
and GSIS will instead offer the Block of Shares to the other Qualified
Bidders:

PALISOC & SARMIENTO

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met
a. Execution of the necessary contracts with GSIS/MHC not later
than October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/ OGCC (Office of the Government Corporate Counsel)
are obtained." 3
Pending the declaration of Renong Berhard as the winning
bidder/strategic partner and the execution of the necessary
contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share
tendered by Renong Berhad. 4 In a subsequent letter dated 10
October 1995 petitioner sent a manager's check issued by Philtrust
Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security
to match the bid of the Malaysian Group, Messrs. Renong Berhad . .
. . 5 which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS
has disregarded the tender of the matching bid and that the sale of
51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court
on prohibition and mandamus. On 18 October 1995 the Court
issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court
En Banc after it was referred to it by the First Division. The case
was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the
1987 Constitution and submits that the Manila Hotel has been
identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine
heritage and culture. It is a proud legacy of an earlier generation of

44 | P a g e

Filipinos who believed in the nobility and sacredness of

independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has
become a part of the national patrimony. 6 Petitioner also argues
that since 51% of the shares of the MHC carries with it the
ownership of the business of the hotel which is owned by
respondent GSIS, a government-owned and controlled corporation,
the hotel business of respondent GSIS being a part of the tourism
industry is unquestionably a part of the national economy. Thus,
any transaction involving 51% of the shares of stock of the MHC is
clearly covered by the term national economy, to which Sec. 10,
second par., Art. XII, 1987 Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of
the national patrimony and its business also unquestionably part of
the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in
terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par.,
Art. XII, of the 1987 Constitution is merely a statement of principle
and policy since it is not a self-executing provision and requires
implementing legislation(s). . . . Thus, for the said provision to
operate, there must be existing laws "to lay down conditions under
which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel
does not fall under the term national patrimony which only refers to
lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna and all marine wealth in its
territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According
to respondents, while petitioner speaks of the guests who have
slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall
under the patrimony of the nation. What is more, the mandate of
the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from
the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national
patrimony, the constitutional provision invoked is still inapplicable
since what is being sold is only 51% of the outstanding shares of

PALISOC & SARMIENTO

the corporation, not the hotel building nor the land upon which the
building stands. Certainly, 51% of the equity of the MHC cannot be
considered part of the national patrimony. Moreover, if the
disposition of the shares of the MHC is really contrary to the
Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1, of the
bidding rules which provides that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this
to the other Qualified Bidders that have validly submitted bids
provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share, is misplaced. Respondents
postulate that the privilege of submitting a matching bid has not
yet arisen since it only takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares. Thus the submission
by petitioner of a matching bid is premature since Renong Berhad
could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of
discretion should fail since respondent GSIS did not exercise its
discretion in a capricious, whimsical manner, and if ever it did
abuse its discretion it was not so patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act
required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for
the governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the authority from
which it emanates. It has been defined as the fundamental and
paramount law of the nation. 10 It prescribes the permanent
framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes
certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law
to which all other laws must conform and in accordance with which
all private rights must be determined and all public authority
administered. 11 Under the doctrine of constitutional supremacy, if
a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for private
purposes is null and void and without any force and effect. Thus,
since the Constitution is the fundamental paramount and supreme

45 | P a g e

law of the nation, it is deemed written in every statute and

contract.
Admittedly, some constitutions are merely declarations of policies
and principles. Their provisions command the legislature to enact
laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different
departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens. 12 A provision which
lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without the aid
of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed
or protected, is self-executing. Thus a constitutional provision is
self-executing if the nature and extent of the right conferred and
the liability imposed are fixed by the constitution itself, so that they
can be determined by an examination and construction of its terms,
and there is no language indicating that the subject is referred to
the legislature for action. 13
As against constitutions of the past, modern constitutions have
been generally drafted upon a different principle and have often
become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has
evolved into one more like that of a legislative body. Hence, unless
it is expressly provided that a legislative act is necessary to enforce
a constitutional mandate, the presumption now is that all provisions
of the constitution are self-executing. If the constitutional provisions
are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify
the mandate of the fundamental law. 14 This can be cataclysmic.
That is why the prevailing view is, as it has always been, that . . . in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing. . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from
discussions on the floor of the 1986 Constitutional Commission -

PALISOC & SARMIENTO

MR. RODRIGO. Madam President, I am asking this question as the

Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to "QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is
it to remove the word "QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS"
as against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use
the word "QUALIFIED" because the existing laws or prospective
laws will always lay down conditions under which business may be
done. For example, qualifications on capital, qualifications on the
setting up of other financial structures, et cetera (emphasis
supplied by respondents).
MR RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes. 16
Quite apparently, Sec. 10, second par., of Art. XII is couched in such
a way as not to make it appear that it is non-self-executing but
simply for purposes of style. But, certainly, the legislature is not
precluded from enacting further laws to enforce the constitutional
provision so long as the contemplated statute squares with the
Constitution. Minor details may be left to the legislature without the
self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still
enact legislation to facilitate the exercise of powers directly granted
by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a
convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a
self-executing constitutional provision does not render such a
provision ineffective in the absence of such legislation. The
omission from a constitution of any express provision for a remedy
for enforcing a right or liability is not necessarily an indication that
it was not intended to be self-executing. The rule is that a selfexecuting provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in
harmony with the constitution, further the exercise of constitutional

46 | P a g e

right and make it more available. 17 Subsequent legislation

however does not necessarily mean that the subject constitutional
provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec.
10, second par., of Art. XII is implied from the tenor of the first and
third paragraphs of the same section which undoubtedly are not
self-executing. 18 The argument is flawed. If the first and third
paragraphs are not self-executing because Congress is still to enact
measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still
needs legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic, the second paragraph
can only be self-executing as it does not by its language require
any legislation in order to give preference to qualified Filipinos in
the grant of rights, privileges and concessions covering the national
economy and patrimony. A constitutional provision may be selfexecuting in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain
constitutional provisions are merely statements of principles and
policies, which are basically not self-executing and only placed in
the Constitution as moral incentives to legislation, not as judicially
enforceable rights - are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation 20 speaks of constitutional
provisions on personal dignity, 21 the sanctity of family life, 22 the
vital role of the youth in nation-building, 23 the promotion of social
justice, 24 and the values of education. 25 Tolentino v. Secretary of
Finance 26 refers to constitutional provisions on social justice and
human rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v.
Morato 29 cites provisions on the promotion of general welfare, 30
the sanctity of family life, 31 the vital role of the youth in nationbuilding 32 and the promotion of total human liberation and
development. 33 A reading of these provisions indeed clearly shows
that they are not judicially enforceable constitutional rights but
merely guidelines for legislation. The very terms of the provisions
manifest that they are only principles upon which legislations must
be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete
in itself and which needs no further guidelines or implementing
laws or rules for its enforcement. From its very words the provision
does not require any legislation to put it in operation. It is per se
judicially enforceable. When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national
economy and patrimony, the State shall give preference to

PALISOC & SARMIENTO

qualified Filipinos, it means just that - qualified Filipinos shall be

preferred. And when our Constitution declares that a right exists in
certain specified circumstances an action may be maintained to
enforce such right notwithstanding the absence of any legislation
on the subject; consequently, if there is no statute especially
enacted to enforce such constitutional right, such right enforces
itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is
a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986
Constitutional Commission 34 explains The patrimony of the Nation that should be conserved and
developed refers not only to our rich natural resources but also to
the cultural heritage of our race. It also refers to our intelligence in
arts, sciences and letters. Therefore, we should develop not only
our lands, forests, mines and other natural resources but also the
mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony
pertains to heritage. 35 When the Constitution speaks of national
patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of
Philippine heritage. While it was restrictively an American hotel
when it first opened in 1912, it immediately evolved to be truly
Filipino. Formerly a concourse for the elite, it has since then
become the venue of various significant events which have shaped
Philippine history. It was called the Cultural Center of the 1930's. It
was the site of the festivities during the inauguration of the
Philippine Commonwealth. Dubbed as the Official Guest House of
the Philippine Government it plays host to dignitaries and official
visitors who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila
Hotel: The Heart and Memory of a City. 37 During World War II the
hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to
recapture Manila the hotel was selected by the Japanese together
with Intramuros as the two (2) places for their final stand.
Thereafter, in the 1950's and 1960's, the hotel became the center
of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and
reaped numerous international recognitions, an acknowledgment of
the Filipino talent and ingenuity. In 1986 the hotel was the site of a

47 | P a g e

failed coup d'etat where an aspirant for vice-president was

"proclaimed" President of the Philippine Republic.

MR MONSOD. Yes, because, in fact, we would be limiting it if we say

that the preference should only be 100-percent Filipino.

For more than eight (8) decades Manila Hotel has bore mute
witness to the triumphs and failures, loves and frustrations of the
Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty,
independence and nationhood. Verily, Manila Hotel has become
part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that
anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot
be disassociated from the hotel and the land on which the hotel
edifice stands. Consequently, we cannot sustain respondents' claim
that the Filipino First Policy provision is not applicable since what is
being sold is only 51% of the outstanding shares of the corporation,
not the Hotel building nor the land upon which the building stands.
38

MR. DAVIDE. I want to get that meaning clear because "QUALIFIED

FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.

The argument is pure sophistry. The term qualified Filipinos as used

in our Constitution also includes corporations at least 60% of which
is owned by Filipinos. This is very clear from the proceedings of the
1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE
PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL
OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS."
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino
citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?

PALISOC & SARMIENTO

MR. MONSOD. We agree, Madam President. 39

xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the amendment
be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as
intended by the proponents, will include not only individual Filipinos
but also Filipino-controlled entities or entities fully-controlled by
Filipinos. 40
The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a
question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS."
MR. FOZ. In connection with that amendment, if a foreign
enterprise is qualified and a Filipino enterprise is also qualified, will
the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you. 41
Expounding further on the Filipino
Commissioner Nolledo continues -

First

Policy

provision

48 | P a g e

MR NOLLEDO. Yes, Madam President. Instead of "MUST," it will be

"SHALL - THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS." This embodies the so-called "Filipino First" policy. That
means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony.
42
The exchange of views in the sessions of the Constitutional
Commission regarding the subject provision was still further
clarified by Commissioner Nolledo 43 "Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino"
bias in all economic concerns. It is better known as the FILIPINO
FIRST Policy. . . . This provision was never found in previous
Constitutions. . . .
The term "qualified Filipinos" simply means that preference shall be
given to those citizens who can make a viable contribution to the
common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential
treatment to Filipino citizens or organizations that are incompetent
or inefficient, since such an indiscriminate preference would be
counterproductive and inimical to the common good.
In the granting of economic rights, privileges, and concessions,
when a choice has to be made between a "qualified foreigner" and
a "qualified Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of the qualified
bidders. It was pre-qualified by respondent GSIS in accordance with
its own guidelines so that the sole inference here is that petitioner
has been found to be possessed of proven management expertise
in the hotel industry, or it has significant equity ownership in
another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the
Constitution by arguing that the subject provision is not selfexecutory and requires implementing legislation is quite disturbing.
The attempt to violate a clear constitutional provision - by the
government itself - is only too distressing. To adopt such a line of
reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution
which evidently need implementing legislation have juridical life of
their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding

PALISOC & SARMIENTO

legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on

constitutional government is apt The executive department has a constitutional duty to implement
laws, including the Constitution, even before Congress acts provided that there are discoverable legal standards for executive
action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable
laws. The responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of Congress. If
it were, the executive would have to ask Congress, or perhaps the
Court, for an interpretation every time the executive is confronted
by a constitutional command. That is not how constitutional
government operates. 45
Respondents further argue that the constitutional provision is
addressed to the State, not to respondent GSIS which by itself
possesses a separate and distinct personality. This argument again
is at best specious. It is undisputed that the sale of 51% of the MHC
could only be carried out with the prior approval of the State acting
through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the
sale of the assets of respondents GSIS and MHC a "state action." In
constitutional jurisprudence, the acts of persons distinct from the
government are considered "state action" covered by the
Constitution (1) when the activity it engages in is a "public
function;" (2) when the government is so-significantly involved with
the private actor as to make the government responsible for his
action; and, (3) when the government has approved or authorized
the action. It is evident that the act of respondent GSIS in selling
51% of its share in respondent MHC comes under the second and
third categories of "state action." Without doubt therefore the
transaction, although entered into by respondent GSIS, is in fact a
transaction of the State and therefore subject to the constitutional
command. 46
When the Constitution addresses the State it refers not only to the
people but also to the government as elements of the State. After
all, government is composed of three (3) divisions of power legislative, executive and judicial. Accordingly, a constitutional
mandate directed to the State is correspondingly directed to the
three (3) branches of government. It is undeniable that in this case
the subject constitutional injunction is addressed among others to
the Executive Department and respondent GSIS, a government
instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the
higher bid it is not yet the winning bidder. The bidding rules

49 | P a g e

expressly provide that the highest bidder shall only be declared the
winning bidder after it has negotiated and executed the necessary
contracts, and secured the requisite approvals. Since the Filipino
First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an
assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award
yet, nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated to
abide by the dictates of the 1987 Constitution the provisions of
which are presumed to be known to all the bidders and other
interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the
bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle
in constitutional law that all laws and contracts must conform with
the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any
reason the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to
match the highest bid in terms of price per share. 47 Certainly, the
constitutional mandate itself is reason enough not to award the
block of shares immediately to the foreign bidder notwithstanding
its submission of a higher, or even the highest, bid. In fact, we
cannot conceive of a stronger reason than the constitutional
injunction itself.
In the instant case, where a foreign firm submits the highest bid in
a public bidding concerning the grant of rights, privileges and
concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino
will have to be allowed to match the bid of the foreign entity. And if
the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to the
Filipino First Policy provision of the 1987 Constitution. For, while this
may neither be expressly stated nor contemplated in the bidding
rules, the constitutional fiat is omnipresent to be simply
disregarded. To ignore it would be to sanction a perilous skirting of
the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny.

PALISOC & SARMIENTO

These are given factors which investors must consider when

venturing into business in a foreign jurisdiction. Any person
therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well
aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike
were invited to the bidding. But foreigners may be awarded the
sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case
before us, while petitioner was already preferred at the inception of
the bidding because of the constitutional mandate, petitioner had
not yet matched the bid offered by Renong Berhad. Thus it did not
have the right or personality then to compel respondent GSIS to
accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of
petitioner's matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made. To
insist on selling the Manila Hotel to foreigners when there is a
Filipino group willing to match the bid of the foreign group is to
insist that government be treated as any other ordinary market
player, and bound by its mistakes or gross errors of judgment,
regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would
rather remedy the indiscretion while there is still an opportunity to
do so than let the government develop the habit of forgetting that
the Constitution lays down the basic conditions and parameters for
its actions.
Since petitioner has already matched the bid price tendered by
Renong Berhad pursuant to the bidding rules, respondent GSIS is
left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and
documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding
documents with petitioner as provided in the bidding rules after the
latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a
guideline for future legislation but primarily to be enforced; so must

50 | P a g e

it be enforced. This Court as the ultimate guardian of the

Constitution will never shun, under any reasonable circumstance,
the duty of upholding the majesty of the Constitution which it is
tasked to defend. It is worth emphasizing that it is not the intention
of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and
welcomes more business opportunities but avowedly sanctions the
preference for Filipinos whenever such preference is ordained by
the Constitution. The position of the Court on this matter could
have not been more appropriately articulated by Chief Justice
Narvasa As scrupulously as it has tried to observe that it is not its function
to substitute its judgment for that of the legislature or the
executive about the wisdom and feasibility of legislation economic
in nature, the Supreme Court has not been spared criticism for
decisions perceived as obstacles to economic progress and
development . . . in connection with a temporary injunction issued
by the Court's First Division against the sale of the Manila Hotel to a
Malaysian Firm and its partner, certain statements were published
in a major daily to the effect that that injunction "again
demonstrates that the Philippine legal system can be a major
obstacle to doing business here."

Let it be stated for the record once again that while it is no business
of the Court to intervene in contracts of the kind referred to or set
itself up as the judge of whether they are viable or attainable, it is
its bounden duty to make sure that they do not violate the
Constitution or the laws, or are not adopted or implemented with
grave abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how buffeted by
winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its
business viability and preventing further losses, regardless of the
character of the asset, should not take precedence over nonmaterial values. A commercial, nay even a budgetary, objective
should not be pursued at the expense of national pride and dignity.
For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the
proper governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond judicial
review when the Constitution is involved. 49
Nationalism is inherent in the very concept of the Philippines being
a democratic and republican state, with sovereignty residing in the

PALISOC & SARMIENTO

Filipino people and from whom all government authority emanates.

In nationalism, the happiness and welfare of the people must be
the goal. The nation-state can have no higher purpose. Any
interpretation of any constitutional provision must adhere to such
basic concept. Protection of foreign investments, while laudable, is
merely a policy. It cannot override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just
any commodity to be sold to the highest bidder solely for the sake
of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic
relic that has hosted many of the most important events in the
short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a strong
manifestation of their desire to cloak the dignity of the highest
state function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant role as
an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino
soul - a place with a history of grandeur; a most historical setting
that has played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined
efforts of respondents to sell the historical landmark - this Grand
Old Dame of hotels in Asia - to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien
hands cannot be less than mephistophelian for it is, in whatever
manner viewed, a veritable alienation of a nation's soul for some
pieces of foreign silver. And so we ask: What advantage, which
cannot be equally drawn from a qualified Filipino, can be gained by
the Filipinos if Manila Hotel - and all that it stands for - is sold to a
non-Filipino? How much of national pride will vanish if the nation's
cultural heritage is entrusted to a foreign entity? On the other
hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous
and well-meaning Filipino? This is the plain and simple meaning of
the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will
continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION andOFFICE
OF
THE
GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from
selling 51% of the shares of the Manila Hotel Corporation
to RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to purchase

51 | P a g e

the subject 51% of the shares of the Manila Hotel Corporation at

P44.00 per share and thereafter to execute the necessary
agreements and documents to effect the sale, to issue the
necessary clearances and to do such other acts and deeds as may
be necessary for the purpose.
SO ORDERED
Political Law; Constitutional Law; Self-Executing And Non-SelfExecuting Provisions
The general rule is that Provisions which are complete in
themselves and do not need enabling legislation for their operation;
judicially enforceable per se. The nature and extent of the right
conferred and the liability imposed are fixed by the constitution
itself. [Manila Prince Hotel v. GSIS, G.R. No. 122156,
February 3, 1997]
Non-executing provisions lay down a general principle, and merely
indicate principles without laying rules giving them the force of law.
The disregard of such rights does not give rise to any cause of
action before the courts. [Pamatong v. COMELEC, G.R. No.
161872, April 13, 2004] An example of non-self-executing
provision are the principles in Article II. They are used by the
judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws. [Tondo
Medical v. Court of Appeals, G.R. No. 167324, July 17, 2000]
There are however, exceptions to the exceptions, such as:
1. The right to a balanced and healthful ecology is selfexecutory
and
does
not
need
an
implementing
legislation [Oposa v. Factoran, G.R. No. 101083, July
30, 1993];
2. The duty of full public disclosure [Province of North
Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008];
3. The Right to information in Art. III [Legaspi v. Civil Service
Commission, G.R. No. L-72119, May 29, 1987]; and
4. The Filipino First Policy [Bernas, The 1987 Constitution:
A commentary (2009)].
Self-Executory Provisions:
A constitutional provision is self-executing if the nature and extent
of theright conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an

PALISOC & SARMIENTO

examination and construction of its terms, and there is no

language indicating that the subject is referred to the legislature
for
action.
A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution is usually not self-executing.
But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that
which supplies sufficient rule by means of which the right it grants
may
be
enjoyed
or
protected,
is
self-executing.
Unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self- executing.
The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing.
The rule is that a self-executing provision
not necessarily exhaust legislative power
legislation must be in harmony with the
exercise of constitutional right and make it

of the constitution does

on the subject, but any
constitution, further the
more available.

A constitutional provision may be self-executing in one part and

non-self-executing in another.
[see Manila Prince Hotel v. GSIS, G.R. No. 122156,
February 3, 1997]
The following are self-executing provisions
1. The right to a balanced and healthful ecology is selfexecutory and does not need an implementing
legislation [Oposa v. Factoran, G.R. No. 101083, July
30, 1993]
2. The duty of full public disclosure [Province of North
Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008]
3. The Right to information in Art. III [Legaspi v. Civil
Service Commission, G.R. No. L-72119, May 29,
1987];
4. The Filipino First Policy [Bernas, The 1987
Constitution: A commentary (2009); Manila Prince
Hotel v. GSIS, G.R. No. 122156, February 3, 1997].
Non Self-Executory Provisions

52 | P a g e

Non-executing provisions lay down a general principle, and merely

indicate principles without laying rules giving them the force of law.
The disregard of such rights does not give rise to any cause of
action before the courts. [Pamatong v. COMELEC, G.R. No.
161872, April 13, 2004].
An example of non-self-executing provision is the principles in
Article II. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its
enactment of laws. [Tondo Medical v. Court of Appeals, G.R.
No. 167324, July 17, 2000].

PALISOC & SARMIENTO

53 | P a g e

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, Petitioner, versus

COMMISSION ON ELECTIONS, Respondent.
G.R. No. 161872 | 2004-04-13
RESOLUTION
Tinga, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy
for President on December 17, 2003. Respondent Commission on
Elections (COMELEC) refused to give due course to petitioner's
Certificate of Candidacy in its Resolution No. 6558 dated January
17, 2004. The decision, however, was not unanimous since
Commissioners Luzviminda G. Tancangco and Mehol K. Sadain
voted to include petitioner as they believed he had parties or
movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of
Resolution No. 6558. Petitioner's Motion for Reconsideration was
docketed as SPP (MP) No. 04-001. The COMELEC, acting on
petitioner's Motion for Reconsideration and on similar motions filed
by other aspirants for national elective positions, denied the same
under the aegis of Omnibus Resolution No. 6604 dated February 11,
2004. The COMELEC declared petitioner and thirty-five (35) others
nuisance candidates who could not wage a nationwide campaign
and/or are not nominated by a political party or are not supported
by a registered political party with a national constituency.
Commissioner Sadain maintained his vote for petitioner. By then,
Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the
resolutions which were allegedly rendered in violation of his right to
"equal access to opportunities for public service" under Section 26,
Article II of the 1987
Constitution,[1] by limiting the number of qualified candidates only
to those who can afford to wage a nationwide campaign and/or are
nominated by political parties. In so doing, petitioner argues that
the COMELEC indirectly amended the constitutional provisions on
the electoral process and limited the power of the sovereign people
to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the
presidential candidates, i.e., he possesses all the constitutional and
legal qualifications for the office of the president, he is capable of
waging a national campaign since he has numerous national
organizations under his leadership, he also has the capacity to
wage an international campaign since he has practiced law in other

PALISOC & SARMIENTO

countries, and he has a platform of government. Petitioner likewise

attacks the validity of the form for the Certificate of Candidacy
prepared by the COMELEC. Petitioner claims that the form does not
provide clear and reasonable guidelines for determining the
qualifications of candidates since it does not ask for the candidate's
bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner's invocation of the constitutional provision
ensuring "equal access to opportunities for public office" is the
claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to seek the presidency. There is
none. What is recognized is merely a privilege subject to limitations
imposed by law. Section 26, Article II of the Constitution neither
bestows such a right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain language of the
provision which suggests such a thrust or justifies an interpretation
of the sort.
The "equal access" provision is a subsumed part of Article II of the
Constitution, entitled "Declaration of Principles and State Policies."
The provisions under the Article are generally considered not selfexecuting,[2] and there is no plausible reason for according a
different treatment to the "equal access" provision. Like the rest of
the policies enumerated in Article II, the provision does not contain
any judicially enforceable constitutional right but merely specifies a
guideline for legislative or executive action.[3] The disregard of the
provision does not give rise to any cause of action before the
courts.[4]
An inquiry into the intent of the framers[5] produces the same
determination that the provision is not self-executory. The original
wording of the present Section 26, Article II had read, "The State
shall broaden opportunities to public office and prohibit public
dynasties."[6] Commissioner (now Chief Justice) Hilario Davide, Jr.
successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the
substitution of the word "office" to "service." He explained his
proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO"
because what is important would be equal access to the
opportunity. If you broaden, it would necessarily mean that the
government would be mandated to create as many offices as are
possible to accommodate as many people as are also possible. That
is the meaning of broadening opportunities to public service. So, in

54 | P a g e

order that we should not mandate the State to make the

government the number one employer and to limit offices only to
what may be necessary and expedient yet offering equal
opportunities to access to it, I change the word "broaden." [7]
(emphasis supplied)
Obviously, the provision is not intended to compel the State to
enact positive measures that would accommodate as many people
as possible into public office. The approval of the "Davide
amendment" indicates the design of the framers to cast the
provision as simply enunciatory of a desired policy objective and
not reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is
to be regarded as the source of positive rights. It is difficult to
interpret the clause as operative in the absence of legislation since
its effective means and reach are not properly defined. Broadly
written, the myriad of claims that can be subsumed under this
rubric appear to be entirely open-ended.[8] Words and phrases
such as "equal access," "opportunities," and "public service" are
susceptible to countless interpretations owing to their inherent
impreciseness. Certainly, it was not the intention of the framers to
inflict on the people an operative but amorphous foundation from
which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to
public office may be subjected to limitations. Some valid limitations
specifically on the privilege to seek elective office are found in the
provisions[9] of the Omnibus Election Code on "Nuisance
Candidates" and COMELEC Resolution No. 6452[10] dated
December 10, 2002 outlining the instances wherein the COMELEC
may motu proprio refuse to give due course to or cancel a
Certificate of Candidacy.
As long as the limitations apply to everybody equally without
discrimination, however, the equal access clause is not violated.
Equality is not sacrificed as long as the burdens engendered by the
limitations are meant to be borne by any one who is minded to file
a certificate of candidacy. In the case at bar, there is no showing
that any person is exempt from the limitations or the burdens
which they create.
Significantly, petitioner does not challenge the constitutionality or
validity of Section 69 of the Omnibus Election Code and COMELEC
Resolution No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has to be accorded due weight.

PALISOC & SARMIENTO

Clearly, therefore, petitioner's reliance on the equal access clause

in Section 26, Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates
and the disqualification of candidates who have not evinced a bona
fide intention to run for office is easy to divine. The State has a
compelling interest to ensure that its electoral exercises are
rational, objective, and orderly. Towards this end, the State takes
into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election.
These practical difficulties should, of course, never exempt the
State from the conduct of a mandated electoral exercise. At the
same time, remedial actions should be available to alleviate these
logistical hardships, whenever necessary and proper. Ultimately, a
disorderly election is not merely a textbook example of inefficiency,
but a rot that erodes faith in our democratic institutions. As the
United States Supreme Court held:
[T]here is surely an important state interest in requiring some
preliminary showing of a significant modicum of support before
printing the name of a political organization and its candidates on
the ballot - the interest, if no other, in avoiding confusion,
deception and even frustration of the democratic [process].[11]
The COMELEC itself recognized these practical considerations when
it promulgated Resolution No. 6558 on 17 January 2004, adopting
the study Memorandum of its Law Department dated 11 January
2004. As observed in the COMELEC's Comment:
There is a need to limit the number of candidates especially in the
case of candidates for national positions because the election
process becomes a mockery even if those who cannot clearly wage
a national campaign are allowed to run. Their names would have to
be printed in the Certified List of Candidates, Voters Information
Sheet and the Official Ballots. These would entail additional costs to
the government. For the official ballots in automated counting and
canvassing of votes, an additional page would amount to more or
less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to
continue if they cannot wage a decent campaign enough to project
the prospect of winning, no matter how slim.[12]

55 | P a g e

The preparation of ballots is but one aspect that would be affected

by allowance of "nuisance candidates" to run in the elections. Our
election laws provide various entitlements for candidates for public
office, such as watchers in every polling place,[13] watchers in the
board of canvassers,[14] or even the receipt of electoral
contributions.[15] Moreover, there are election rules and
regulations the formulations of which are dependent on the number
of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance
candidacy becomes even more galling. The organization of an
election with bona fide candidates standing is onerous enough. To
add into the mix candidates with no serious intentions or
capabilities to run a viable campaign would actually impair the
electoral process. This is not to mention the candidacies which are
palpably ridiculous so as to constitute a one-note joke. The poll
body would be bogged by irrelevant minutiae covering every step
of the electoral process, most probably posed at the instance of
these nuisance candidates. It would be a senseless sacrifice on the
part of the State.
Owing to the superior interest in ensuring a credible and orderly
election, the State could exclude nuisance candidates and need not
indulge in, as the song goes, "their trips to the moon on gossamer
wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are
cognizant of the compelling State interest to ensure orderly and
credible elections by excising impediments thereto, such as
nuisance candidacies that distract and detract from the larger
purpose. The COMELEC is mandated by the Constitution with the
administration of elections[16] and endowed with considerable
latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections.[17] Moreover, the
Constitution guarantees that only bona fide candidates for public
office shall be free from any form of harassment and discrimination.
[18] The determination of bona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in
the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are,
their proper application in the case of the petitioner cannot be
tested and reviewed by this Court on the basis of what is now
before it. The assailed resolutions of the COMELEC do not direct the
Court to the evidence which it considered in determining that

PALISOC & SARMIENTO

petitioner was a nuisance candidate. This precludes the Court from

reviewing at this instance whether the COMELEC committed grave
abuse of discretion in disqualifying petitioner, since such a review
would necessarily take into account the matters which the
COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various
documents purportedly evincing his credentials as an eligible
candidate for the presidency. Yet this Court, not being a trier of
facts, can not properly pass upon the reproductions as evidence at
this level. Neither the COMELEC nor the Solicitor General appended
any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not
is both legal and factual. The basis of the factual determination is
not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.
A word of caution
aspiration and offer
cursory treatment
requirements of due

is in order. What is at stake is petitioner's

to serve in the government. It deserves not a
but a hearing which conforms to the
process.

As to petitioner's attacks on the validity of the form for the

certificate of candidacy, suffice it to say that the form strictly
complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of candidacy
should contain, with the required information tending to show that
the candidate possesses the minimum qualifications for the
position aspired for as established by the Constitution and other
election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No.
04-001 is hereby remanded to the COMELEC for the reception of
further evidence, to determine the question on whether petitioner
Elly Velez Lao Pamatong is a nuisance candidate as contemplated
in Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of
evidence and report its findings to this Court with deliberate
dispatch.
SO ORDERED.
Political Law; Constitutional Law; Self-Executing And Non-SelfExecuting Provisions

56 | P a g e

The general rule is that Provisions which are complete in

themselves and do not need enabling legislation for their operation;
judicially enforceable per se. The nature and extent of the right
conferred and the liability imposed are fixed by the constitution
itself. [Manila Prince Hotel v. GSIS, G.R. No. 122156,
February
3,
1997]
Non-executing provisions lay down a general principle, and merely
indicate principles without laying rules giving them the force of law.
The disregard of such rights does not give rise to any cause of
action before the courts. [Pamatong v. COMELEC, G.R. No.
161872, April 13, 2004] An example of non-self-executing
provision are the principles in Article II. They are used by the
judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws. [Tondo
Medical v. Court of Appeals, G.R. No. 167324, July 17, 2000]
There are however, exceptions to the exceptions, such as:
1. The right to a balanced and healthful ecology is selfexecutory
and
does
not
need
an
implementing
legislation [Oposa v. Factoran, G.R. No. 101083, July
30, 1993];
2. The duty of full public disclosure [Province of North
Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008];
3. The Right to information in Art. III [Legaspi v. Civil Service
Commission, G.R. No. L-72119, May 29, 1987]; and
4. The Filipino First Policy [Bernas, The 1987 Constitution:
A commentary (2009)].

PALISOC & SARMIENTO

57 | P a g e

THE COLLECTOR OF INTERNAL REVENUE, petitioner, vs.

ANTONIO CAMPOS RUEDA, respondent.
G.R. No. L-13250 | 1971-10-29
DECISION
FERNANDO, J:
The basic issue posed by petitioner Collector of Internal Revenue in
this appeal from a decision of the Court of Tax Appeals as to
whether or not the requisites of statehood, or at least so much
thereof as may be necessary for the acquisition of an international
personality, must be satisfied for a "foreign country" to fall within
the exemption of Section 122 of the National Internal Revenue
Code 1 is now ripe for adjudication. The Court of Tax Appeals
answered the question in the negative, and thus reversed the
action taken by petitioner Collector, who would hold respondent
Antonio Campos Rueda, as administrator of the estate of the late
Estrella Soriano Vda. de Cerdeira, liable for the sum of P161,874.95
as deficiency estate and inheritance taxes for the transfer of
intangible personal properties in the Philippines, the deceased, a
Spanish national having been a resident of Tangier, Morocco from
1931 up to the time of her death in 1955. In an earlier resolution
promulgated May 30, 1962, this Court on the assumption that the
need for resolving the principal question would be obviated,
referred the matter back to the Court of Tax Appeals to determine
whether the alleged law of Tangier did grant the reciprocal tax
exemption required by the aforesaid Section 122. Then came an
order from the Court of Tax Appeals submitting copies of legislation
of Tangier that would manifest that the element of reciprocity was
not lacking. It was not until July 29, 1969 that the case was deemed
submitted for decision. When the petition for review was filed on
January 2, 1958, the basic issue raised was impressed with an
element of novelty. Four days thereafter, however, on January 6,
1958, it was held by this Court that the aforesaid provision does not
require that the "foreign country" possess an international
personality to come within its terms. 2 Accordingly, we have to
affirm.
The decision of the Court of Tax Appeals, now under review, sets
forth the background facts as follows: "This is an appeal interposed
by petitioner Antonio Campos Rueda, administrator of the estate of
the deceased Doa Maria de la Estrella Soriano Vda. de Cerdeira,
from the decision of the respondent Collector of Internal Revenue,
assessing against and demanding from the former the sum
P161,874.95 as deficiency state and inheritance taxes, including
interests and penalties, on the transfer of intangible personal
properties situated in the Philippines and belonging to said Maria

PALISOC & SARMIENTO

de la Estrella Soriano Vda. de Cerdeira. Maria de la Estrella Soriano

Vda. de Cerdeira (Maria Cerdeira for short) is a Spanish national, by
reason of her marriage to a Spanish citizen and was a resident of
Tangier, Morocco from 1931 up to her death on January 2, 1955. At
the time of her demise she left, among others, intangible personal
properties in the Philippines." 3 Then came this portion: "On
September 29, 1955, petitioner filed a provisional estate and
inheritance tax return on all the properties of the late Maria
Cerdeira. On the same date, respondent, pending investigation,
issued an assessment for estate and inheritance taxes in the
respective amounts of P111,592.48 and P157,791.48, or a total of
P369,383.96 which tax liabilities were paid by petitioner . . . . On
November 17, 1955, an amended return was filed . . . where
intangible personal properties with the value of P396,308.90 were
claimed as exempted from taxes. On November 23, 1955,
respondent, pending investigation, issued another assessment for
estate and inheritance taxes in the amounts of P469,664.24 . . . In
a letter dated January 11, 1956, respondent denied the request for
exemption on the ground that the law of Tangier is not reciprocal to
Section 122 of the National Internal Revenue Code. Hence,
respondent demanded the payment of the sums of P239,439.49
representing deficiency estate and inheritance taxes including ad
valorem penalties, surcharges, interests and compromise
penalties . . . . In a letter dated February 8, 1956, and received by
respondent on the following day, petitioner requested for the
reconsideration of the decision denying the claim for tax exemption
of the intangible personal properties and the imposition of the 25%
and 5% ad valorem penalties . . . . However, respondent denied this
request, in his letter dated May 5, 1956 . . . and received by
petitioner on May 21, 1956. Respondent premised the denial on the
grounds that there was no reciprocity [with Tangier, which was
moreover] a mere principality, not a foreign country. Consequently,
respondent demanded the payment of the sums of P73,851.21 and
P88,023.74 respectively, or a total of P161,874.95 as deficiency
estate and inheritance taxes including surcharges, interests and
compromise penalties." 4
The matter was then elevated to the Court of Tax Appeals. As there
was no dispute between the parties regarding the values of the
properties and the mathematical correctness of the deficiency
assessments, the principal question as noted dealt with the
reciprocity aspect as well as the insistence by the Collector of
Internal Revenue that Tangier was not a foreign country within the
meaning of Section 122. In ruling against the contention of the
Collector of Internal Revenue, the appealed decision states: "In fine
we believe, and so hold, that the expression 'foreign country', used
in the last proviso of Section 122 of the National Internal Revenue

58 | P a g e

Code, refers to a government of that foreign power which, although

not an international person in the sense of international law, does
not impose transfer or death taxes upon intangible personal
properties of our citizens not residing therein, or whose law allows a
similar exemption from such taxes. It is, therefore, not necessary
that Tangier should have been recognized by our Government in
order to entitle the petitioner to the exemption benefits of the last
proviso of Section 122 of our Tax Code." 5
Hence this appeal to this Court by petitioner. The respective briefs
of the parties were duly submitted, but as above indicated, instead
of ruling definitely on the question, this Court, on May 30, 1962,
resolved to inquire further into the question of reciprocity and sent
back the case to the Court of Tax Appeals for the reception of
evidence thereon. The dispositive portion of such resolution reads
as follows: "While section 122 of the Philippine Tax Code
aforequoted speaks of 'intangible personal property' in both
subdivisions (a) and (b); the alleged laws of Tangier refer to 'bienes
muebles situados en Tanger', 'bienes muebles radicantes en
Tanger', 'movables' and 'movable property. In order that this Court
may be able to determine whether the alleged laws of Tangier grant
the reciprocal tax exemptions required by Section 122 of the Tax
Code, and without, for the time being, going into the merits of the
issues raised by the petitioner-appellant, the case is [remand] to
the Court of Tax Appeals for the reception of evidence or proofs on
whether or not the words 'bienes muebles', 'movables' and
'movable property' as used in the Tangier laws, include or embrace
'intangible personal property', as used in the Tax Code." 6 In line
with the above resolution, the Court of Tax Appeals admitted
evidence submitted by the administrator, petitioner Antonio
Campos Rueda, consisting of exhibits of laws of Tangier to the
effect that "the transfers by reason of death of movable properties,
corporeal or incorporeal, including furniture and personal effects, as
well as of securities, bonds, shares, . . ., were not subject, on that
date and in said zone, to the payment of any death tax, whatever
might have been the nationality of the deceased or his heirs and
legatees." It was further noted in an order of such Court referring
the matter back to us that such 'exhibits were duly admitted in
evidence during the hearing of the case on September 9, 1963.
Respondent presented no evidence." 7
The controlling legal provision as noted is a proviso in Section 122
of the National Internal Revenue Code. It reads thus:
"That no tax shall be collected under this Title in respect of
intangible personal property (a) if decedent at the time of his death
was a resident of a foreign country which at the time of his death

PALISOC & SARMIENTO

did not impose a transfer tax or death tax of any character in

respect of intangible personal property of citizens of the Philippines
not residing in that foreign country, or (b) if the laws of the foreign
country of which the decedent was a resident at the time of his
death allow a similar exemption from transfer taxes or death taxes
of every character in respect of intangible personal property owned
by citizens of the Philippines not residing in that foreign country." 8
The only obstacle therefore to a definitive ruling is whether or not
as vigorously insisted upon by petitioner the acquisition of internal
personality is a condition sine qua non to Tangier being considered
a "foreign country." Deference to the De Lara ruling, as was made
clear in the opening paragraph of this opinion, calls for an
affirmance of the decision of the Court of Tax Appeals.
It does not admit of doubt that if a foreign country is to be
identified with a state, it is required in line with Pound's formulation
that it be a politically organized sovereign community independent
of outside control bound by ties of nationhood, legally supreme
within its territory, acting through a government functioning under
a regime of law. 9 It is thus a sovereign person with the people
composing it viewed as an organized corporate society under a
government with the legal competence to exact obedience its
commands. 10 It has been referred to as a body-politic organized
by common consent for mutual defense and mutual safety and to
promote the general welfare. 11 Correctly has it been described by
Esmein as "the juridical personification of the nation." 12 This is to
view it in the light its historical development. The stress is on its
being a nation, its people occupying a definite territory, politically
organized, exercising by means of its government its sovereign will
over the individuals within it and maintaining its separate
international personality. Laski could speak of it then as a territorial
society divided into government and subjects, claiming within its
allotted area a supremacy over all other institutions. 13 McIver
similarly would point to the power entrusted to its government to
maintain within its territory the conditions of a legal order and to
enter into international relations. 14 With the latter requisites
satisfied, international law does not exact independence as a
condition of statehood. So Hyde did opine. 15
Even on the assumption then that Tangier is bereft of international
personality petitioner has not successfully made out a case. It
bears repeating that four days after the filing of this petition on
January 6, 1958 in Collector of Internal Revenue v. De Lara, 16 it
was specifically held by us: "Considering the State of California as a
foreign country in relation to section 122 of our Tax Code we
believe and hold, as did the Tax Court, that the Ancilliary
Administrator is entitled to exemption from the inheritance tax on

59 | P a g e

the intangible personal property found in the Philippines." 17 There

can be no doubt that California as a state in the American Union
was lacking in the alleged requisite of international personality.
Nonetheless, it was held to be a foreign country within the meaning
of Section 122 of the National Internal Revenue Code. 18
What is undeniable is that even prior to the De Lara ruling, this
Court did commit itself to the doctrine that even a tiny principality,
that of Liechtenstein, hardly an international personality in the
tradition sense, did fall under this exempt category. So it appears in
an opinion of the Court by the then Acting Chief Justice Bengzon,
who thereafter assumed that position in a permanent capacity, in
Riene v. Collector of Internal Revenue. 19 As was therein noted:
'The Board found from the documents submitted to it proof of the
laws of Liechtenstein that said country does not impose estate,
inheritance and gift taxes on intangible personal property of Filipino
citizens not residing in that country. Wherefore, the Board declared
that pursuant to the exemption above established, no estate or
inheritance taxes were collectible, Ludwig Kiene being a resident of
Liechtenstein when he passed away." 20 Then came this definitive
ruling "The Collector hereafter named respondent cites decisions of
the United States Supreme Court and of this Court, holding that
intangible personal property in the Philippines belonging to a nonresident foreigner, who died outside of this country is subject to the
estate tax, in disregard of the principle 'mobilia sequuntur
personam'. Such property admittedly taxable here. Without the
proviso above quoted, the shares of stock owned here by the
Ludwig Kiene would be concededly subject to estate and
inheritance taxes. Nevertheless our Congress chose to make an
exemption where conditions are such that demand reciprocity as in
this case. And the exemption must be honored." 21
WHEREFORE, the decision of the respondent Court of Tax Appeals
of October 30, 1957 is affirmed. Without pronouncement as to
costs.

PALISOC & SARMIENTO

60 | P a g e

WILLIAM C. REAGAN, ETC., petitioner, vs. COMMISSIONER OF

INTERNAL REVENUE, respondent.
G.R. No. L-26379 | 1969-12-27
DECISION
FERNANDO, J.:

employee of Bendix Badio, Division of Bendix Aviation Corporation,

which provides technical assistance to the United States Air Force,
was assigned at Clark Air Base, Philippines, on or about July 7, 1959
. . . Nine (9) months thereafter and before his tour of duty expired,
petitioner imported on April 22, 1960 a tax-free 1960 Cadillac car
with accessories valued at $6,443.83, including freight, insurance
and other charges." 4 Then came the following:

A question novel in character, the answer to which has far-reaching

implications, is raised by petitioner William C. Reagan, at one time
a civilian employee of an American corporation providing technical
assistance to the United States Air Force in the Philippines. He
would dispute the payment of the income tax assessed on him by
respondent Commissioner of Internal Revenue on an amount
realized by him on a sale of his automobile to a member of the
United States Marine Corps, the transaction having taken place at
the Clark Field Air Base at Pampanga. It is his contention, seriously
and earnestly pressed, that in legal contemplation the sale was
made outside Philippine territory and therefore beyond our
jurisdictional power to tax.

"On July 11, 1960, more than two (2) months after the 1960
Cadillac car was imported into the Philippines, petitioner requested
the Base Commander, Clark Air Base, for a permit to sell the car,
which was granted provided that the sale was made to a member
of the United States Armed Forces or a citizen of the United States
employed in the U.S. military bases in the Philippines. On the same
date, July 11, 1960, petitioner sold his car for $6,600.00 to a certain
Willie Johnson, Jr. (Private first class), United States Marine Corps,
Sangley Point, Cavite, Philippines, as shown by a Bill of Sale . . .
executed at Clark Air Base. On the same date, Pfc. Willie (William)
Johnson, Jr. sold the car to Fred Meneses for P32,000.00 as
evidenced by a deed of sale executed in Manila." 5

Such a plea, far-fetched and implausible, on its face betraying no

kinship with reality, he would justify by invoking, mistakenly as will
hereafter be more fully shown an observation to that effect in a
1951 opinion, 1 petitioner ignoring that such utterance was made
purely as a flourish of rhetoric and by way of emphasizing the
decision reached, that the trading firm as purchaser of army goods
must respond for the sales taxes due from an importer, as the
American armed forces being exempt could not be taxed as such
under the National Internal Revenue Code. 2 Such an assumption,
inspired by the commendable aim to render unavailing any attempt
at tax evasion on the part of such vendee, found expression anew
in a 1962 decision, 3 coupled with the reminder however, to render
the truth unmistakable, that "the areas covered by the United
States Military Bases are not foreign territories both in the political
and geographical sense. "As thus clarified, it is manifest that such a
view amounts at most to a legal fiction and is moreover obiter. It
certainly cannot control the resolution of the specific question that
confronts us. We declare our stand in an unequivocal manner. The
sale having taken place on what indisputably is Philippine territory,
petitioner's liability for the income tax due as a result thereof was
unavoidable. As the Court of Tax Appeals reached a similar
conclusion, we sustain its decision now before us on appeal.

As a result of the transaction thus made, respondent Commissioner

of Internal Revenue, after deducting the landed cost of the car as
well as the personal exemption to which petitioner was entitled,
fixed as his net taxable income arising from such transaction the
amount of P17,912.34, rendering him liable for income tax in the
sum of P2,979.00. After paying the sum, he sought a refund from
respondent claiming that he was exempt, but pending action on his
request for refund, he filed the case with the Court of Tax Appeals
seeking recovery of the sum of P2,979.00 plus the legal rate of
interest.

In the decision appealed from, the Court of Tax Appeals, after

stating the nature of the case, started the recital of facts thus: "It
appears that petitioner, a citizen of the United States and an

1. Resort to fundamentals is unavoidable to place things in their

proper perspective, petitioner apparently feeling justified in his
refusal to defer to basic postulates of constitutional and

PALISOC & SARMIENTO

As noted in the appealed decision: "The only issue submitted for

our resolution is whether or not the said income tax of P2,979.00
was legally collected by respondent for petitioner." 6 After
discussing the legal issues raised, primarily the contention that the
Clark Air Base "in legal contemplation, is a base outside the
Philippines" the sale therefore having taken place on "foreign soil".
the Court of Tax Appeals found nothing objectionable in the
assessment and thereafter the payment of P2,979.00 as income tax
and denied the refund on the same. Hence, this appeal predicated
on a legal theory we cannot accept. Petitioner cannot make out a
case for reversal.

61 | P a g e

international law, induced no doubt by the weight he would accord

to the observation made by this Court in the two opinions earlier
referred to. To repeat, scant comfort, if at all, is to be derived from
such an obiter dictum, one which is likewise far from reflecting the
fact as it is.

to the same extent in that power which could impose such

restriction." After which came this paragraph: "All exceptions,
therefore, to the full and complete power of a nation within its own
territories, must be traced up to the consent of the nation itself.
They can flow from no other legitimate source."

Nothing is better settled than that the Philippines being

independent and sovereign, its authority may be exercised over its
entire domain. There is no portion there of that is beyond its power.
Within its limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to whom it
applies must submit to its terms. That is the extent of its
jurisdiction, both territorial and personal. Necessarily, likewise, it
has to be exclusive. If it were not thus, there is a diminution of its
sovereignty.

Chief Justice Taney, in an 1857 decision, 9 affirmed the

fundamental principle of everyone within the territorial domain of a
state being subject to its commands: "For undoubtedly every
person who is found within the limits of a government, whether the
temporary purposes or as a resident, is bound by its laws." It is no
exaggeration then for Justice Brewer to stress that the United
States government "is one having jurisdiction over every foot of soil
within its territory, and acting directly upon each [individual found
therein]; . . ." 10

It is to be admitted that any state may, by its consent, express or

implied, submit to a restriction of its sovereign rights. There may
thus be a curtailment of what otherwise is a power plenary in
character. That is the concept of sovereignty as auto-limitation,
which, in the succinct language of Jellinek, "is the property of a
state-force due to which it has the exclusive capacity of legal selfdetermination and self-restriction." 7 A state then, if it chooses to,
may refrain from the exercise of what otherwise is illimitable
competence.

Not too long ago, there was a reiteration of such a view, this time
from the pen of Justice Van Devanter. Thus: "It now is settled in the
United States and recognized elsewhere that the territory subject to
its jurisdiction includes the land areas under its dominion and
control the ports, harbors, bays, and other inclosed arms of the sea
along its coast, and a marginal belt of the sea extending from the
coast line outward a marine league, or 3 geographic miles." 11 He
could cite moreover, in addition to many American decisions, such
eminent treatise-writers as Kent, Moore, Hyde, Wilson, Westlake,
Wheaton and Oppenheim.

Its laws may as to some persons found within its territory no longer
control. Nor does the matter end there.
It is not precluded from allowing another power to participate in the
exercise of jurisdictional right over certain portions of its territory. If
it does so, it by no means follows that such areas become
impressed with an alien character. They retain their status as native
soil. They are still subject to its authority. Its jurisdiction may be
diminished, but it does not disappear. So it is with the bases under
lease to the American armed forces by virtue of the military bases
agreement of 1947. They are not and cannot be foreign territory.
Decisions coming from petitioner's native land, penned by jurists of
repute, speak to that effect with impressive unanimity. We start
with the citation from Chief Justice Marshall, announced in the
leading case of Schooner Exchange v. M'Faddon, 8 an 1812
decision: "The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no limitation
not imposed by itself. Any restriction upon it, deriving validity from
an external source, would imply a diminution of its sovereignty to
the extent of the restriction, and an investment of that sovereignty

PALISOC & SARMIENTO

As a matter of fact, the eminent commentator Hyde in his threevolume work on International Law, as interpreted and applied by
the United States, made clear that not even the embassy premises
of a foreign power are to be considered outside the territorial
domain of the host state. Thus: "The ground occupied by an
embassy is not in fact the territory of the foreign State to which the
premises belong through possession or ownership. The lawfulness
or unlawfulness of acts there committed is determined by the
territorial sovereign. If an attach commits an offense within the
precincts of an embassy, his immunity from prosecution is not
because he has not violated the local law, but rather for the reason
that the individual is exempt from prosecution. If a person not so
exempt, or whose immunity is waived, similarly commits a crime
therein, the territorial sovereign, if it secures custody of the
offender, may subject him to prosecution, even though its criminal
code normally does not contemplate the punishment of one who
commits an offense outside of the national domain. It is not
believed, therefore, that an ambassador himself possesses the right
to exercise jurisdiction, contrary to the will of the State of his
sojourn, even within his embassy with respect to acts there

62 | P a g e

committed. Nor is there apparent at the present time any tendency

on the part of States to acquiesce in his exercise of it." 12
2. In the light of the above, the first and crucial error imputed to the
Court of Tax Appeals to the effect that it should have held that the
Clark Air Force is foreign soil or territory for purposes of income tax
legislation is clearly without support in law. As thus correctly
viewed, petitioner's hope for the reversal of the decision completely
fades away. There is nothing in the Military Bases Agreement that
lends support to such an assertion. It has not become foreign soil or
territory. This country's jurisdictional rights therein, certainly not
excluding the power to tax, have been preserved. As to certain tax
matters, an appropriate exemption was provided for.
Petitioner could not have been unaware that to maintain the
contrary would be to defy reality and would be an affront to the law.
While his first assigned error is thus worded, he would seek to
impart plausibility to his claim by the ostensible invocation of the
exemption clause in the Agreement by virtue of which a "national
of the United States serving in or employed in the Philippines in
connection with the construction, maintenance, operation or
defense of the bases and residing in the Philippines only by reason
of such employment" is not to be taxed on his income unless
"derived from Philippine source or sources other than the United
States sources." 13 The reliance, to repeat, is more apparent than
real for as noted at the outset of this opinion, petitioner places
more faith not on the language of the provision on exemption but
on a sentiment given expression in a 1951 opinion of this Court,
which would be made to yield such an unwarranted interpretation
at war with the controlling constitutional and international law
principles. At any rate, even if such a contention were more
adequately pressed and insisted upon, it is on its face devoid of
merit as the source clearly was Philippine.
In Saura Import and Export Co. v. Meer, 14 the case above referred
to, this Court affirmed a decision rendered about seven months
previously, 15 holding liable as an importer, within the
contemplation of the National Internal Revenue Code provision, the
trading firm that purchased army goods from a United States
government agency in the Philippines. It is easily understandable
why. If it were not thus, tax evasion would have been facilitated.
The United States forces that brought in such equipment later
disposed of as surplus, when no longer needed for military
purposes, was beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a
rationale, quoting extensively from the earlier opinion. He could

PALISOC & SARMIENTO

have stopped there. He chose not to do so. The transaction having

occurred in 1946, not so long after the liberation of the Philippines,
he proceeded to discuss the role of the American military
contingent in the Philippines as a belligerent occupant. In the
course of such a dissertion, drawing on his well-known gift for
rhetoric and cognizant that he was making an as if statement, he
did say: "While in army bases or installations within the Philippines
those goods were in contemplation of law on foreign soil."
It is thus evident that the first, and thereafter the controlling,
decision as to the liability for sales taxes as an importer by the
purchaser, could have been reached without any need for such
expression as that given utterance by Justice Tuason. Its value then
as an authoritative doctrine cannot be as much as petitioner would
mistakenly attach to it. It was clearly obiter not being necessary for
the resolution of the issue before this Court. 16 It was an opinion
"uttered by the way." 17 It could not then be controlling on the
question before us now, the liability of the petitioner for income tax
which, as announced at the opening of this opinion, is squarely
raised for the first time. 18
On this point, Chief Justice Marshall could again be listened to with
profit. Thus: "It is a maxim, not to be disregarded, that general
expressions, in every opinion, are to be taken in connection with
the case in which those expressions are used. If they go beyond the
case. they may be respected, but ought not to control the judgment
in a subsequent suit when the very point is presented for decision."
19
Nor did the fact that such utterance of Justice Tuason was cited in
Co Po v. Collector of Internal Revenue, 20 a 1962 decision relied
upon by petitioner, put a different complexion on the matter. Again,
it was by way of pure embellishment, there being no need to repeat
it, to reach the conclusion that it was the purchaser of army goods,
this time from military bases, that must respond for the advance
sales taxes as importer. Again, the purpose that animated the
reiteration of such a view was clearly to emphasize that through
the employment of such a fiction, tax evasion is precluded. What is
more, how far divorced from the truth was such statement was
emphasized by Justice Barrera, who penned the Co Po opinion,
thus: "It is true that the areas covered by the United States Military
Bases are not foreign territories both in the political and
geographical sense." 21
Justice Tuason moreover made explicit that rather than
corresponding with reality, what was said by him was in the way of
a legal fiction. Note his stress on "in contemplation of law." To lend

63 | P a g e

further support to a conclusion already announced, being at that a

confirmation of what had been arrived at in the earlier case,
distinguished by its sound appreciation of the issue then before this
Court and to preclude any tax evasion, an observation certainly not
to be taken literally was thus given utterance.
This is not to say that it should have been ignored altogether
afterwards. It could be utilized again, as it undoubtedly was,
especially so for the purpose intended, namely to stigmatize as
without support in law any attempt on the part of a taxpayer to
escape an obligation incumbent upon him. So it was quoted with
that end in view in the Co Po case. It certainly does not justify any
effort to render futile the collection of a tax legally due, as here.
That was farthest from the thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a legal fiction.
This is not to discount the uses of a fictio juris in the science of the
law. It was Cardozo who pointed out its value as a device "to
advance the ends of justice" although at times it could be "clumsy"
and even "offensive". 22 Certainly, then, while far from
objectionable as thus enunciated, this observation of Justice Tuason
could be misused or misconstrued in a clumsy manner to reach an
offensive result. To repeat, properly used, a legal fiction could be
relied upon by the law, as Frankfurter noted, in the pursuit of
legitimate ends. 23 Petitioner then would be well-advised to take to
heart such counsel of care and circumspection before invoking not
a legal fiction that would avoid a mockery of the law by avoiding
tax evasion but what clearly is a misinterpretation thereof, leading
to results that would have shocked its originator.
The conclusion is thus irresistible that the crucial error assigned,
the only one that calls for discussion to the effect that for income
tax purposes the Clark Air Force Base is outside Philippine territory,
is utterly without merit. So we have said earlier.
3. To impute then to the statement of Justice Tuason the meaning
that petitioner would fasten on it is, to paraphrase Frankfurter, to
be guilty of succumbing to the vice of literalness. To so conclude is,
whether by design or inadvertence, to misread it. It certainly is not
susceptible of the mischievous consequences now sought to be
fastened on it by petitioner.
That it would be fraught with such peril to the enforcement of our
tax statutes on the military bases under lease to the American
armed forces could not have been within the contemplation of
Justice Tuason. To so attribute such a bizarre consequence is to be
guilty of a grave disservice to the memory of a great jurist. For his

PALISOC & SARMIENTO

real and genuine sentiment on the matter in consonance with the

imperative mandate of controlling constitutional and international
law concepts was categorically set forth by him, not as an obiter
but as the rationale of the decision, in People v. Acierto 24 thus: "By
the [Military Bases] Agreement, it should be noted, the Philippine
Government merely consents that the United States exercise
jurisdiction in certain cases. The consent was given purely as a
matter of comity, courtesy, or expediency over the bases as part of
the Philippine territory or divested itself completely of jurisdiction
over offenses committed therein."
Nor did he stop there. He did stress further the full extent of our
territorial jurisdiction in words that do not admit of doubt. Thus:
"This provision is not and can not on principle or authority be
construed as a limitation upon the rights of the Philippine
Government. If anything, it is an emphatic recognition and
reaffirmation of Philippine sovereignty over the bases and of the
truth that all jurisdictional rights granted to the United States and
not exercised by the latter are reserved by the Philippines for
itself." 25
It is in the same spirit that we approach the specific question
confronting us in this litigation. We hold, as announced at the
outset, that petitioner was liable for the income tax arising from a
sale of his automobile in the Clark Field Air Base, which clearly is
and cannot otherwise be other than, within our territorial
jurisdiction to tax.
4. With the mist thus lifted from the situation as it truly presents
itself, there is nothing that stands in the way of an affirmance of
the Court of Tax Appeals decision. No useful purpose would be
served by discussing the other assigned errors, petitioner himself
being fully aware that if the Clark Air Force Base is to be
considered, as it ought to be and as it is, Philippine soil or territory,
his claim for exemption from the income tax due was distinguished
only by its futility.
There is further satisfaction in finding ourselves unable to indulge
petitioner in his plea for reversal. We thus manifest fealty to a
pronouncement made time and time again that the law does not
look with favor on tax exemptions and that he who would seek to
be thus privileged must justify it by words too plain to be mistaken
and too categorical to be misinterpreted. 26 Petitioner had not
done so. Petitioner cannot do so.

64 | P a g e

WHEREFORE, the decision of the Court of Tax Appeals of May 12,

1966 denying the refund of P2,979.00 as the income tax paid by
petitioner is affirmed. With costs against petitioner.

PALISOC & SARMIENTO

65 | P a g e

Republic of the Philippines, petitioner, vs. Sandiganbayan,

Major General Josephus Q. Ramas and Elizabeth Dimaano,
respondents.
G.R. No. 104768 | 2003-07-21
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set
aside the Resolutions of the Sandiganbayan (First Division)[1] dated
18 November 1991 and 25 March 1992 in Civil Case No. 0037. The
first Resolution dismissed petitioner's Amended Complaint and
ordered the return of the confiscated items to respondent Elizabeth
Dimaano, while the second Resolution denied petitioner's Motion
for Reconsideration. Petitioner prays for the grant of the reliefs
sought in its Amended Complaint, or in the alternative, for the
remand of this case to the Sandiganbayan (First Division) for further
proceedings allowing petitioner to complete the presentation of its
evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful
EDSA Revolution, then President Corazon C. Aquino issued
Executive Order No. 1 ("EO No. 1") creating the Presidential
Commission on Good Government ("PCGG"). EO No. 1 primarily
tasked the PCGG to recover all ill-gotten wealth of former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates
and close associates. EO No. 1 vested the PCGG with the power "(a)
to conduct investigation as may be necessary in order to
accomplish and carry out the purposes of this order" and the power
"(h) to promulgate such rules and regulations as may be necessary
to carry out the purpose of this order." Accordingly, the PCGG,
through its then Chairman Jovito R. Salonga, created an AFP AntiGraft Board ("AFP Board") tasked to investigate reports of
unexplained wealth and corrupt practices by AFP personnel,
whether in the active service or retired.[2]
Based on its mandate, the AFP Board investigated various reports
of alleged unexplained wealth of respondent Major General
Josephus Q. Ramas ("Ramas"). On 27 July 1987, the AFP Board
issued a Resolution on its findings and recommendation on the
reported unexplained wealth of Ramas. The relevant part of the
Resolution reads:

PALISOC & SARMIENTO

III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a
house and lot located at 15-Yakan St., La Vista, Quezon City. He is
also the owner of a house and lot located in Cebu City. The lot has
an area of 3,327 square meters.
The value of the property located in Quezon City may be estimated
modestly at P700,000.00.
The equipment/items and communication facilities which were
found in the premises of Elizabeth Dimaano and were confiscated
by elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command
Coy, MSC, PA. These items could not have been in the possession of
Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.
Aside from the military equipment/items and communications
equipment, the raiding team was also able to confiscate money in
the amount of P2,870,000.00 and $50,000 US Dollars in the house
of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security
Command, Philippine Army, stationed at Camp Eldridge, Los Baos,
Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in
the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas,
Batangas City and when he arrives, Elizabeth Dimaano embraces
and kisses respondent. That on February 25, 1986, a person who
rode in a car went to the residence of Elizabeth Dimaano with four
(4) attache cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth
Dimaano had no visible means of income and is supported by
respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used
the military equipment/items seized in her house on March 3, 1986
without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the P2,870,000.00 and $50,000 US
Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and
Liabilities of respondent. There was an intention to cover the

66 | P a g e

existence of these money because these are all ill-gotten and

unexplained wealth. Were it not for the affidavits of the members of
the Military Security Unit assigned at Camp Eldridge, Los Baos,
Laguna, the existence and ownership of these money would have
never been known.
The Statement of Assets and Liabilities of respondent were also
submitted for scrutiny and analysis by the Board's consultant.
Although the amount of P2,870,000.00 and $50,000 US Dollars
were not included, still it was disclosed that respondent has an
unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case
exists against respondent for ill-gotten and unexplained wealth in
the amount of P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as amended,
otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture
of Unlawfully Acquired Property."[3]
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 ("RA No. 1379") [4] against Ramas.
Before Ramas could answer the petition, then Solicitor General
Francisco I. Chavez filed an Amended Complaint naming the
Republic of the Philippines ("petitioner"), represented by the PCGG,
as plaintiff and Ramas as defendant. The Amended Complaint also
impleaded Elizabeth Dimaano ("Dimaano") as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding
General of the Philippine Army until 1986. On the other hand,
Dimaano was a confidential agent of the Military Security Unit,
Philippine Army, assigned as a clerk-typist at the office of Ramas
from 1 January 1978 to February 1979. The Amended Complaint
further alleged that Ramas "acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his
other income from legitimately acquired property by taking undue
advantage of his public office and/or using his power, authority and
influence as such officer of the Armed Forces of the Philippines and
as a subordinate and close associate of the deposed President
Ferdinand Marcos."[5]

PALISOC & SARMIENTO

The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that
respondents have violated RA No. 1379.[6] The Amended
Complaint prayed for, among others, the forfeiture of respondents'
properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses
and Compulsory Counterclaim to the Amended Complaint. In his
Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued at
P700,000, which was not out of proportion to his salary and other
legitimate income. He denied ownership of any mansion in Cebu
City and the cash, communications equipment and other items
confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint.
Admitting her employment as a clerk-typist in the office of Ramas
from January-November 1978 only, Dimaano claimed ownership of
the monies, communications equipment, jewelry and land titles
taken from her house by the Philippine Constabulary raiding team.
After termination of the pre-trial,[7] the court set the case for trial
on the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the
hearing due to its lack of preparation for trial and the absence of
witnesses and vital documents to support its case. The court reset
the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the
complaint in order "to charge the delinquent properties with being
subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x."[8]
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan
proceeded with petitioner's presentation of evidence on the ground
that the motion for leave to amend complaint did not state when
petitioner would file the amended complaint. The Sandiganbayan
further stated that the subject matter of the amended complaint
was on its face vague and not related to the existing complaint. The
Sandiganbayan also held that due to the time that the case had
been pending in court, petitioner should proceed to present its
evidence.
After presenting only three witnesses, petitioner asked for a
postponement of the trial.

67 | P a g e

On 28 September 1989, during the continuation of the trial,

petitioner manifested its inability to proceed to trial because of the
absence of other witnesses or lack of further evidence to present.
Instead, petitioner reiterated its motion to amend the complaint to
conform to the evidence already presented or to change the
averments to show that Dimaano alone unlawfully acquired the
monies or properties subject of the forfeiture.

The records of this case are hereby remanded and referred to the
Hon. Ombudsman, who has primary jurisdiction over the forfeiture
cases under R.A. No. 1379, for such appropriate action as the
evidence warrants. This case is also referred to the Commissioner
of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.

The Sandiganbayan noted that petitioner had already delayed the

case for over a year mainly because of its many postponements.
Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for
trial. The Sandiganbayan ordered petitioner to prepare for
presentation of its additional evidence, if any.

On 4 December
Reconsideration.

1991,

petitioner

filed

its

Motion

for

During the trial on 23 March 1990, petitioner again admitted its

inability to present further evidence. Giving petitioner one more
chance to present further evidence or to amend the complaint to
conform to its evidence, the Sandiganbayan reset the trial to 18
May 1990. The Sandiganbayan, however, hinted that the re-setting
was without prejudice to any action that private respondents might
take under the circumstances.

On 25 March 1992, the Sandiganbayan rendered a Resolution

denying the Motion for Reconsideration.

However, on 18 May 1990, petitioner again expressed its inability

to proceed to trial because it had no further evidence to present.
Again, in the interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an appropriate pleading. The
Sandiganbayan, however, warned petitioner that failure to act
would constrain the court to take drastic action.

(1.) The actions taken by the PCGG are not in accordance with the
rulings of the Supreme Court in Cruz, Jr. v. Sandiganbayan[10] and
Republic v. Migrino[11] which involve the same issues.

Private respondents then filed their motions to dismiss based on

Republic v. Migrino.[9] The Court held in Migrino that the PCGG
does not have jurisdiction to investigate and prosecute military
officers by reason of mere position held without a showing that
they are "subordinates" of former President Marcos.

(3.) The evidence adduced against Ramas does not constitute a

prima facie case against him.

On 18 November 1991, the Sandiganbayan rendered a resolution,

the
dispositive
portion
of
which
states:

The Issues

In answer to the Motion for Reconsideration, private respondents

filed a Joint Comment/Opposition to which petitioner filed its Reply
on 10 January 1992.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the
following grounds:

(2.) No previous inquiry similar to preliminary investigations in

criminal cases was conducted against Ramas and Dimaano.

(4.) There was an illegal search and seizure of the items

confiscated.

Petitioner raises the following issues:

WHEREFORE, judgment is hereby rendered dismissing the
Amended Complaint, without pronouncement as to costs. The
counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry
and land titles are ordered returned to Elizabeth Dimaano.

PALISOC & SARMIENTO

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT

PETITIONER'S EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE
AND THAT THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION
OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND
BETWEEN RESPONDENT RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS WERE

68 | P a g e

CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED

PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE
ORIGINAL COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE
STRUCK OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT
IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v.
MIGRINO, 189 SCRA 289, NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.
Migrino, supra, are clearly not applicable to this case;
2. Any procedural defect in the institution of the complaint in Civil
Case No. 0037 was cured and/or waived by respondents with the
filing of their respective answers with counterclaim; and
3. The separate motions to dismiss were evidently improper
considering that they were filed after commencement of the
presentation of the evidence of the petitioner and even before the
latter was allowed to formally offer its evidence and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ARTICLES
AND
THINGS
SUCH
AS
SUMS
OF
MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO WERE
ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS EVIDENCE.[12]
The Court's Ruling
First Issue: PCGG's
Respondents

Jurisdiction

to

Investigate

Private

This case involves a revisiting of an old issue already decided by

this Court in Cruz, Jr. v. Sandiganbayan[13] and Republic v. Migrino.
[14]
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture
petition against Ramas and Dimaano for unexplained wealth under
RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the

PALISOC & SARMIENTO

active service or retired.[15] The PCGG tasked the AFP Board to

make the necessary recommendations to appropriate government
agencies on the action to be taken based on its findings.[16] The
PCGG gave this task to the AFP Board pursuant to the PCGG's
power under Section 3 of EO No. 1 "to conduct investigation as may
be necessary in order to accomplish and to carry out the purposes
of this order." EO No. 1 gave the PCGG specific responsibilities, to
wit:
SEC. 2. The Commission shall be charged with the task of assisting
the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the
Philippines or abroad, including the takeover and sequestration of
all business enterprises and entities owned or controlled by them,
during his administration, directly or through nominees, by taking
undue advantage of their public office and/ or using their powers,
authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the
President may assign to the Commission from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who fall
under either of the two categories mentioned in Section 2 of EO No.
1. These are: (1) AFP personnel who have accumulated ill-gotten
wealth during the administration of former President Marcos by
being the latter's immediate family, relative, subordinate or close
associate, taking undue advantage of their public office or using
their powers, influence x x x;[17] or (2) AFP personnel involved in
other cases of graft and corruption provided the President assigns
their cases to the PCGG.[18]
Petitioner, however, does not claim that the President assigned
Ramas' case to the PCGG. Therefore, Ramas' case should fall under
the first category of AFP personnel before the PCGG could exercise
its jurisdiction over him. Petitioner argues that Ramas was
undoubtedly a subordinate of former President Marcos because of
his position as the Commanding General of the Philippine Army.
Petitioner claims that Ramas' position enabled him to receive
orders directly from his commander-in-chief, undeniably making
him a subordinate of former President Marcos.

69 | P a g e

We hold that Ramas was not a "subordinate" of former President

Marcos in the sense contemplated under EO No. 1 and its
amendments.
Mere position held by a military officer does not automatically make
him a "subordinate" as this term is used in EO Nos. 1, 2, 14 and 14A absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily
show what is contemplated within the term 'subordinate.' The
Whereas Clauses of EO No. 1 express the urgent need to recover
the ill-gotten wealth amassed by former President Ferdinand E.
Marcos, his immediate family, relatives, and close associates both
here and abroad.
EO No. 2 freezes 'all assets and properties in the Philippines in
which former President Marcos and/or his wife, Mrs. Imelda Marcos,
their close relatives, subordinates, business associates, dummies,
agents, or nominees have any interest or participation.'
Applying the rule in statutory construction known as ejusdem
generis that is'[W]here general words follow an enumeration of persons or things
by words of a particular and specific meaning, such general words
are not to be construed in their widest extent, but are to be held as
applying only to persons or things of the same kind or class as
those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of
Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of
Laws, 2nd Ed., 203].'
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one
who enjoys a close association with former President Marcos and/or
his wife, similar to the immediate family member, relative, and
close associate in EO No. 1 and the close relative, business
associate, dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of
former President Marcos. There must be a prima facie showing
that the respondent unlawfully accumulated wealth by
virtue of his close association or relation with former Pres.
Marcos and/or his wife. (Emphasis supplied)

PALISOC & SARMIENTO

Ramas' position alone as Commanding General of the Philippine

Army with the rank of Major General[19] does not suffice to make
him a "subordinate" of former President Marcos for purposes of EO
No. 1 and its amendments. The PCGG has to provide a prima facie
showing that Ramas was a close associate of former President
Marcos, in the same manner that business associates, dummies,
agents or nominees of former President Marcos were close to him.
Such close association is manifested either by Ramas' complicity
with former President Marcos in the accumulation of ill-gotten
wealth by the deposed President or by former President Marcos'
acquiescence in Ramas' own accumulation of ill-gotten wealth if
any.
This, the PCGG failed to do.
Petitioner's attempt to differentiate the instant case from Migrino
does not convince us. Petitioner argues that unlike in Migrino, the
AFP Board Resolution in the instant case states that the AFP Board
conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A
in relation to RA No. 1379. Petitioner asserts that there is a
presumption that the PCGG was acting within its jurisdiction of
investigating crony-related cases of graft and corruption and that
Ramas was truly a subordinate of the former President. However,
the same AFP Board Resolution belies this contention. Although the
Resolution begins with such statement, it ends with the following
recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as amended,
otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture
of Unlawfully Acquired Property."[20]
Thus, although the PCGG sought to investigate and prosecute
private respondents under EO Nos. 1, 2, 14 and 14-A, the result
yielded a finding of violation of Republic Acts Nos. 3019 and 1379
without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of
relation to EO No. 1 and its amendments proves fatal to petitioner's
case. EO No. 1 created the PCGG for a specific and limited purpose,
and necessarily its powers must be construed to address such
specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned
were accumulated by him in his capacity as a "subordinate" of his

70 | P a g e

commander-in-chief. Petitioner merely enumerated the properties

Ramas allegedly owned and suggested that these properties were
disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close
association with former President Marcos. Petitioner, in fact, admits
that the AFP Board resolution does not contain a finding that Ramas
accumulated his wealth because of his close association with
former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board
of the New Armed Forces of the Philippines did not
categorically find a prima facie evidence showing that
respondent Ramas unlawfully accumulated wealth by virtue
of his close association or relation with former President
Marcos and/or his wife, it is submitted that such omission
was not fatal. The resolution of the Anti-Graft Board should be
read in the context of the law creating the same and the objective
of the investigation which was, as stated in the above, pursuant to
Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos.
1, 2, 14 and 14-a;[21]
Such omission is fatal. Petitioner forgets that it is precisely a prima
facie showing that the ill-gotten wealth was accumulated by a
"subordinate" of former President Marcos that vests jurisdiction on
PCGG. EO No. 1[22] clearly premises the creation of the PCGG on
the urgent need to recover all ill-gotten wealth amassed by former
President Marcos, his immediate family, relatives, subordinates and
close associates. Therefore, to say that such omission was not fatal
is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that
fall under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2,[24]
14,[25] 14-A:[26]
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in
relation with Sections 1, 2 and 3 of Executive Order No. 14, shows
what the authority of the respondent PCGG to investigate and
prosecute covers:
(a) the investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No. 1379,
accumulated by former President Marcos, his immediate family,
relatives, subordinates and close associates, whether located in the
Philippines or abroad, including the take-over or sequestration of all
business enterprises and entities owned or controlled by them,
during his administration, directly or through his nominees, by

PALISOC & SARMIENTO

taking undue advantage of their public office and/or using their

powers, authority and influence, connections or relationships; and
(b) the investigation and prosecution of such offenses committed in
the acquisition of said ill-gotten wealth as contemplated under
Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt
Practices Act not otherwise falling under the foregoing
categories, require a previous authority of the President for
the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1.
Otherwise, jurisdiction over such cases is vested in the
Ombudsman and other duly authorized investigating
agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants
and the state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should
investigate and prosecute forfeiture petitions not falling under EO
No. 1 and its amendments. The preliminary investigation of
unexplained wealth amassed on or before 25 February 1986 falls
under the jurisdiction of the Ombudsman, while the authority to file
the corresponding forfeiture petition rests with the Solicitor
General.[27] The Ombudsman Act or Republic Act No. 6770 ("RA
No. 6770") vests in the Ombudsman the power to conduct
preliminary investigation and to file forfeiture proceedings involving
unexplained wealth amassed after 25 February 1986.[28]
After the pronouncements of the Court in Cruz, the PCGG still
pursued this case despite the absence of a prima facie finding that
Ramas was a "subordinate" of former President Marcos. The
petition for forfeiture filed with the Sandiganbayan should be
dismissed for lack of authority by the PCGG to investigate
respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board
Resolution and even the Amended Complaint state that there are
violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas' case to the Ombudsman who has jurisdiction
to conduct the preliminary investigation of ordinary unexplained
wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to
investigate and cause the prosecution of private respondent for
violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be
enjoined from proceeding with the case, without prejudice to any
action that may be taken by the proper prosecutory agency. The

71 | P a g e

rule of law mandates that an agency of government be allowed to

exercise only the powers granted to it.
Petitioner's argument that private respondents have waived any
defect in the filing of the forfeiture petition by submitting their
respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there
is no jurisdiction to waive in the first place. The PCGG cannot
exercise investigative or prosecutorial powers never granted to it.
PCGG's powers are specific and limited. Unless given additional
assignment by the President, PCGG's sole task is only to recover
the ill-gotten wealth of the Marcoses, their relatives and cronies.
[29] Without these elements, the PCGG cannot claim jurisdiction
over a case.
Private respondents questioned the authority and jurisdiction of the
PCGG to investigate and prosecute their cases by filing their Motion
to Dismiss as soon as they learned of the pronouncement of the
Court in Migrino. This case was decided on 30 August 1990, which
explains why private respondents only filed their Motion to Dismiss
on 8 October 1990. Nevertheless, we have held that the parties
may raise lack of jurisdiction at any stage of the proceeding.[30]
Thus, we hold that there was no waiver of jurisdiction in this case.
Jurisdiction is vested by law and not by the parties to an action.
[31]
Consequently, the petition should be dismissed for lack of
jurisdiction by the PCGG to conduct the preliminary investigation.
The Ombudsman may still conduct the proper preliminary
investigation for violation of RA No. 1379, and if warranted, the
Solicitor General may file the forfeiture petition with the
Sandiganbayan.[32] The right of the State to forfeit unexplained
wealth under RA No. 1379 is not subject to prescription, laches or
estoppel.[33]
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in
dismissing the case before completion of the presentation of
petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this
case, we find that petitioner has only itself to blame for noncompletion of the presentation of its evidence. First, this case has
been pending for four years before the Sandiganbayan dismissed
it. Petitioner
filed
its
Amended Complaint on 11
August 1987, and only began to present its evidence on 17

PALISOC & SARMIENTO

April 1989. Petitioner had almost two years to prepare its

evidence. However, despite this sufficient time, petitioner still
delayed the presentation of the rest of its evidence by filing
numerous motions for postponements and extensions. Even before
the date set for the presentation of its evidence, petitioner filed, on
13 April 1989, a Motion for Leave to Amend the Complaint. [34] The
motion sought to charge the delinquent properties (which
comprise most of petitioners evidence) with being subject to
forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x.
The Sandiganbayan, however, refused to defer the presentation of
petitioners evidence since petitioner did not state when it would
file the amended complaint. On 18 April 1989, the Sandiganbayan
set the continuation of the presentation of evidence on 28-29
September and 9-11 October 1989, giving petitioner ample time to
prepare its evidence. Still, on 28 September 1989, petitioner
manifested its inability to proceed with the presentation of its
evidence. The Sandiganbayan issued an Order expressing its view
on the matter, to wit:
The Court has gone through extended inquiry and a narration of the
above events because this case has been ready for trial for over a
year and much of the delay hereon has been due to the inability of
the government to produce on scheduled dates for pre-trial and for
trial documents and witnesses, allegedly upon the failure of the
military to supply them for the preparation of the presentation of
evidence thereon. Of equal interest is the fact that this Court has
been held to task in public about its alleged failure to move cases
such as this one beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now faced with
a situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate
action could have been undertaken by the plaintiff Republic. [35]
On 9 October 1989, the PCGG manifested in court that it was
conducting a preliminary investigation on the unexplained wealth
of private respondents as mandated by RA No. 1379. [36] The PCGG
prayed for an additional four months to conduct the preliminary
investigation. The Sandiganbayan granted this request and
scheduled the presentation of evidence on 26-29 March
1990. However, on the scheduled date, petitioner failed to inform
the court of the result of the preliminary investigation the PCGG
supposedly conducted. Again, the Sandiganbayan gave petitioner
until 18 May 1990 to continue with the presentation of its evidence
and to inform the court of what lies ahead insofar as the status of
the case is concerned x x x. [37] Still on the date set, petitioner
failed to present its evidence. Finally, on 11 July 1990, petitioner
filed its Re-Amended Complaint. [38] The Sandiganbayan correctly
observed that a case already pending for years would revert to its

72 | P a g e

preliminary stage if the court were to accept the Re-Amended

Complaint.
Based on these circumstances, obviously petitioner has only itself
to blame for failure to complete the presentation of its evidence.
The Sandiganbayan gave petitioner more than sufficient time to
finish the presentation of its evidence. The Sandiganbayan
overlooked petitioners delays and yet petitioner ended the longstring of delays with the filing of a Re-Amended Complaint, which
would only prolong even more the disposition of the case.
Moreover,
the
pronouncements
of
the
Court
in Migrino and Cruz prompted the Sandiganbayan to dismiss the
case since the PCGG has no jurisdiction to investigate and
prosecute the case against private respondents. This alone would
have been sufficient legal basis for the Sandiganbayan to dismiss
the forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the
case before completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the
properties confiscated from Dimaanos house as illegally seized and
therefore inadmissible in evidence. This issue bears a significant
effect on petitioners case since these properties comprise most of
petitioners evidence against private respondents. Petitioner will
not have much evidence to support its case against private
respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at
Dimaanos residence a search warrant captioned Illegal Possession
of Firearms and Ammunition. Dimaano was not present during the
raid but Dimaanos cousins witnessed the raid. The raiding team
seized the items detailed in the seizure receipt together with other
items not included in the search warrant. The raiding team seized
these items: one baby armalite rifle with two magazines; 40 rounds
of 5.56 ammunition; one pistol, caliber .45; communications
equipment, cash consisting ofP2,870,000 and US$50,000, jewelry,
and land titles.
Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure on March 3, 1986 or five
days after the successful EDSA revolution. [39] Petitioner argues
that a revolutionary government was operative at that time by
virtue of Proclamation No. 1 announcing that President Aquino and
Vice President Laurel were taking power in the name and by the
will of the Filipino people.[40] Petitioner asserts that the
revolutionary government effectively withheld the operation of the
1973 Constitution which guaranteed private respondents
exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from
an illegal search applies only beginning 2 February 1987, the date

PALISOC & SARMIENTO

of ratification of the 1987 Constitution. Petitioner contends that all

rights under the Bill of Rights had already reverted to its embryonic
stage at the time of the search. Therefore, the government may
confiscate the monies and items taken from Dimaano and use the
same in evidence against her since at the time of their seizure,
private respondents did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquinos Proclamation No. 3 dated 25
March 1986, the EDSA Revolution was done in defiance of the
provisions of the 1973 Constitution.[41] The resulting
government was indisputably a revolutionary government bound by
no constitution or legal limitations except treaty obligations that
the revolutionary government, as the de jure government in the
Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government
was bound by the Bill of Rights of the 1973 Constitution during
theinterregnum, that is, after the actual and effective take-over of
power by the revolutionary government following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately
before the adoption of the Provisional Constitution); and (2)
whether the protection accorded to individuals under the
International Covenant on Civil and Political Rights (Covenant)
and the Universal Declaration of Human Rights (Declaration)
remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum. However, we rule that the
protection accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the
successful revolution, there was no municipal law higher than the
directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any exclusionary
right under a Bill of Rights because there was neither a constitution
nor a Bill of Rights during the interregnum. As the Court explained
in Letter of Associate Justice Reynato S. Puno:[42]
A revolution has been defined as the complete overthrow of the
established government in any country or state by those who were
previously subject to it or as a sudden, radical and fundamental
change in the government or political system, usually effected with
violence or at least some acts of violence. In Kelsen's book,
General Theory of Law and State, it is defined as that which occurs
whenever the legal order of a community is nullified and replaced
by a new order . . . a way not prescribed by the first order itself.

73 | P a g e

It was through the February 1986 revolution, a relatively peaceful

one, and more popularly known as the people power revolution
that the Filipino people tore themselves away from an existing
regime. This revolution also saw the unprecedented rise to power of
the Aquino government.
From the natural law point of view, the right of revolution has been
defined as an inherent right of a people to cast out their rulers,
change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the
legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable. It
has been said that the locus of positive law-making power lies with
the people of the state and from there is derived the right of the
people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution.
xxx
It is widely known that Mrs. Aquinos rise to the presidency
was not due to constitutional processes; in fact, it was
achieved in violation of the provisions of the 1973
Constitution as a Batasang Pambansa resolution had earlier
declared Mr. Marcos as the winner in the 1986 presidential
election. Thus it can be said that the organization of Mrs. Aquinos
Government which was met by little resistance and her control of
the state evidenced by the appointment of the Cabinet and other
key officers of the administration, the departure of the Marcos
Cabinet officials, revamp of the Judiciary and the Military signaled
the point where the legal system then in effect, had ceased
to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on Good
Government (PCGG) before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process and
search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly
a revolutionary government bound by no constitution. No one
could validly question the sequestration orders as violative of the
Bill of Rights because there was no Bill of Rights during the
interregnum. However, upon the adoption of the Freedom

PALISOC & SARMIENTO

Constitution, the sequestered companies assailed the sequestration

orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government,[43] petitioner Baseco, while
conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders upon
adoption of the Freedom Constitution in view of the due process
clause in its Bill of Rights. The Court ruled that the Freedom
Constitution, and later the 1987 Constitution, expressly
recognized the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration,
freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue
them have received constitutional approbation and sanction. As
already mentioned, the Provisional or Freedom Constitution
recognizes the power and duty of the President to enact measures
to achieve the mandate of the people to . . . (r)ecover ill-gotten
properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. And as also
already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the authority to issue
sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986.
The framers of both the Freedom Constitution and the 1987
Constitution were fully aware that the sequestration orders would
clash with the Bill of Rights. Thus, the framers of both constitutions
had to include specific language recognizing the validity of the
sequestration orders. The following discourse by Commissioner
Joaquin G. Bernas during the deliberations of the Constitutional
Commission is instructive:
FR. BERNAS:
Madam President, there is something schizophrenic about the
arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in
the Gregorio Araneta University Foundation, of which all of us have
been given a copy. On the one hand, he argues that everything the
Commission is doing is traditionally legal. This is repeated by
Commissioner Romulo also. Minister Salonga spends a major

74 | P a g e

portion of his lecture developing that argument. On the other hand,

almost as an afterthought, he says that in the end what matters are
the results and not the legal niceties, thus suggesting that the
PCGG should be allowed to make some legal shortcuts, another
word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the
CONCOM for special protection? The answer is clear. What they
are doing will not stand the test of ordinary due process,
hence
they
are
asking
for
protection,
for
exceptions. Grandes malos, grandes remedios, fine, as the saying
stands, but let us not say grandes malos, grande y malos remedios.
That is not an allowable extrapolation. Hence, we should not give
the exceptions asked for, and let me elaborate and give three
reasons:
First, the whole point of the February Revolution and of the work of
the CONCOM is to hasten constitutional normalization. Very much
at the heart of the constitutional normalization is the full effectivity
of the Bill of Rights. We cannot, in one breath, ask for constitutional
normalization and at the same time ask for a temporary halt to the
full functioning of what is at the heart of constitutionalism. That
would be hypocritical; that would be a repetition of Marcosian
protestation of due process and rule of law. The New Society word
for that is backsliding. It is tragic when we begin to backslide
even before we get there.
Second, this is really a corollary of the first. Habits tend to become
ingrained. The committee report asks for extraordinary exceptions
from the Bill of Rights for six months after the convening of
Congress, and Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become
vice. What the committee report is asking for is that we should
allow the new government to acquire the vice of disregarding the
Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested right
to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Third, the argument that what matters are the results and not the
legal niceties is an argument that is very disturbing. When it comes
from a staunch Christian like Commissioner Salonga, a Minister,
and repeated verbatim by another staunch Christian like

PALISOC & SARMIENTO

Commissioner Tingson, it becomes doubly disturbing and even

discombobulating. The argument makes the PCGG an auctioneer,
placing the Bill of Rights on the auction block. If the price is right,
the search and seizure clause will be sold. Open your Swiss bank
account to us and we will award you the search and seizure clause.
You can keep it in your private safe.
Alternatively, the argument looks on the present government as
hostage to the hoarders of hidden wealth. The hoarders will release
the hidden health if the ransom price is paid and the ransom price
is the Bill of Rights, specifically the due process in the search and
seizure clauses. So, there is something positively revolving about
either argument. The Bill of Rights is not for sale to the highest
bidder nor can it be used to ransom captive dollars. This nation will
survive and grow strong, only if it would become convinced of the
values enshrined in the Constitution of a price that is beyond
monetary estimation.
For these reasons, the honorable course for the Constitutional
Commission is to delete all of Section 8 of the committee report
and allow the new Constitution to take effect in full vigor. If Section
8 is deleted, the PCGG has two options. First, it can pursue the
Salonga and the Romulo argument that what the PCGG has been
doing has been completely within the pale of the law. If sustained,
the PCGG can go on and should be able to go on, even without the
support of Section 8. If not sustained, however, the PCGG has only
one honorable option, it must bow to the majesty of the Bill of
Rights.
The PCGG extrapolation of the law is defended by staunch
Christians. Let me conclude with what another Christian replied
when asked to toy around with the law. From his prison cell,
Thomas More said, "I'll give the devil benefit of law for my nations
safety sake. I ask the Commission to give the devil benefit of law
for our nations sake. And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the
amendment
excepting sequestration orders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section
26,[44] Article XVIII of the 1987 Constitution. The framers of the
Constitution were fully aware that absent Section 26, sequestration
orders would not stand the test of due process under the Bill of
Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution
remained in force during the interregnum, absent a constitutional

75 | P a g e

provision excepting sequestration orders from such Bill of Rights,

would clearly render all sequestration orders void during the
interregnum. Nevertheless, even during the interregnum the
Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of the
1973 Constitution.
The revolutionary government, after installing itself as the de
jure government, assumed responsibility for the States good faith
compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory
State to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights [45] recognized in the present
Covenant. Under Article 17(1) of the Covenant, the revolutionary
government had the duty to insure that [n]o one shall be
subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence.
The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that [n]o one shall be arbitrarily
deprived of his property. Although the signatories to the
Declaration did not intend it as a legally binding document, being
only a declaration, the Court has interpreted the Declaration as
part of the generally accepted principles of international law and
binding on the State.[46] Thus, the revolutionary government was
also obligated under international law to observe the rights [47] of
individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or
the Declaration during the interregnum. Whether the revolutionary
government could have repudiated all its obligations under the
Covenant or the Declaration is another matter and is not the issue
here. Suffice it to say that the Court considers the Declaration as
part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid
down in the Covenant. The fact is the revolutionary government
did not repudiate the Covenant or the Declaration in the same way
it repudiated the 1973 Constitution. As the de jure government,
the revolutionary government could not escape responsibility for
the States good faith compliance with its treaty obligations under
international law.
It was only upon the adoption of the Provisional Constitution on 25
March 1986 that the directives and orders of the revolutionary
government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the
1973 Constitution.[48] The Provisional Constitution served as a selflimitation by the revolutionary government to avoid abuses of the
absolute powers entrusted to it by the people.

PALISOC & SARMIENTO

During the interregnum when no constitution or Bill of Rights

existed, directives and orders issued by government officers were
valid so long as these officers did not exceed the authority granted
them by the revolutionary government. The directives and orders
should not have also violated the Covenant or the Declaration. In
this case, the revolutionary government presumptively sanctioned
the warrant since the revolutionary government did not repudiate
it. The warrant, issued by a judge upon proper application,
specified the items to be searched and seized. The warrant is thus
valid with respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included
in the warrant. As admitted by petitioners witnesses, the raiding
team confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q.
According to the search warrant, you are supposed to seize
only for weapons. What else, aside from the weapons, were seized
from the house of Miss Elizabeth Dimaano?
A.
The communications equipment, money in Philippine
currency and US dollars, some jewelries, land titles, sir.
Q.
Now, the search warrant speaks only of weapons to be seized
from the house of Elizabeth Dimaano. Do you know the reason why
your team also seized other properties not mentioned in said
search warrant?
A.
During the conversation right after the conduct of said raid, I
was informed that the reason why they also brought the other
items not included in the search warrant was because the money
and other jewelries were contained in attach cases and cartons
with markings Sony Trinitron, and I think three (3) vaults or steel
safes. Believing that the attach cases and the steel safes were
containing firearms, they forced open these containers only to find
out that they contained money.
xxx
Q.
You said you found money instead of weapons, do you know
the reason why your team seized this money instead of weapons?
A.
I think the overall team leader and the other two officers
assisting him decided to bring along also the money because at
that time it was already dark and they felt most secured if they will
bring that because they might be suspected also of taking money
out of those items, your Honor. [49]
Cross-examination
Atty. Banaag
Q.
Were you present when the search warrant in connection with
this case was applied before the Municipal Trial Court of Batangas,
Branch 1?
A.
Yes, sir.

76 | P a g e

Q.
And the search warrant applied for by you was for the search
and seizure of five (5) baby armalite rifles M-16 and five (5) boxes
of ammunition?
A.
Yes, sir.
xxx
AJ AMORES
Q.
Before you applied for a search warrant, did you conduct
surveillance in the house of Miss Elizabeth Dimaano?
A.
The
Intelligence
Operatives
conducted
surveillance
together
with the MSU elements, your Honor.
Q.
And this party believed there were weapons deposited in
the
house of Miss Elizabeth Dimaano?
A.
Yes, your Honor.
Q.
And they so swore before the Municipal Trial Judge?
A.
Yes, your Honor.
Q.
But they did not mention to you, the applicant for the
search warrant, any other properties or contraband which could
be found in the residence of Miss Elizabeth Dimaano?
A.
They just gave us still unconfirmed report about some hidden
items, for instance, the communications equipment and
money. However, I did not include that in the application for search
warrant considering that we have not established concrete
evidence about that. So when
Q.
So that when you applied for search warrant, you had reason
to believe that only weapons were in the house of Miss Elizabeth
Dimaano?
A.
Yes, your Honor.[50]
xxx
Q.
You stated that a .45 caliber pistol was seized along with one
armalite rifle M-16 and how many ammunition?
A.
Forty, sir.
Q.
And this became the subject of your complaint with the
issuing Court, with the fiscals office who charged Elizabeth
Dimaano for Illegal Possession of Firearms and Ammunition?
A.
Yes, sir.
Q.
Do you know what happened to that case?
A.
I think it was dismissed, sir.
Q.
In the fiscals office?
A.
Yes, sir.
Q.
Because the armalite rifle you seized, as well as the .45
caliber pistol had a Memorandum Receipt in the name of Felino
Melegrito, is that not correct?
A.
I think that was the reason, sir.
Q.
There were other articles seized which were not included in
the search warrant, like for instance, jewelries. Why did you seize
the jewelries?

PALISOC & SARMIENTO

A.
I think it was the decision of the overall team leader and his
assistant to bring along also the jewelries and other items, sir. I do
not really know where it was taken but they brought along also
these articles. I do not really know their reason for bringing the
same, but I just learned that these were taken because they might
get lost if they will just leave this behind.
xxx
Q.
How about the money seized by your raiding team, they were
not also included in the search warrant?
A.
Yes sir, but I believe they were also taken considering that the
money was discovered to be contained in attach cases. These
attach cases were suspected to be containing pistols or other high
powered firearms, but in the course of the search the contents
turned out to be money. So the team leader also decided to take
this considering that they believed that if they will just leave the
money behind, it might get lost also.
Q.
That holds true also with respect to the other articles that
were seized by your raiding team, like Transfer Certificates of Title
of lands?
A.
Yes, sir. I think they were contained in one of the vaults that
were opened.[51]
It is obvious from the testimony of Captain Sebastian that the
warrant did not include the monies, communications equipment,
jewelry and land titles that the raiding team confiscated. The
search warrant did not particularly describe these items and the
raiding team confiscated them on its own authority. The raiding
team had no legal basis to seize these items without showing that
these items could be the subject of warrantless search and seizure.
[52]
Clearly, the raiding team exceeded its authority when it seized
these items.
The seizure of these items was therefore void, and unless these
items are contraband per se,[53] and they are not, they must be
returned to the person from whom the raiding seized
them. However, we do not declare that such person is the lawful
owner of these items, merely that the search and seizure warrant
could not be used as basis to seize and withhold these items from
the possessor. We thus hold that these items should be returned
immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The
questioned Resolutions of the Sandiganbayan dated 18 November
1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action
as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano,
are AFFIRMED.
SO ORDERED.

77 | P a g e

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his

capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST
CRIME
AND
CORRUPTION,
GRAFT
FREE
PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B.
FRANCISCO,
JR.,
respondent.
and
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGALARROYO, respondent.
G.R. No. 146710-15 and G.R. No. 146738 | 2001-03-02
EN BANC
DECISION
PUNO, J.:
On the line in the cases at bar is the office of the President.
Petitioner Joseph Ejercito Estrada alleges that he is the President on
leave while respondent Gloria Macapagal-Arroyo claims she is the
President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the
parties' dispute. While the significant issues are many, the jugular
issue involves the relationship between the ruler and the ruled in a
democracy, Philippine style.
First, we take a view of the panorama of events that precipitated
the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada
was elected President while respondent Gloria Macapagal-Arroyo
was elected Vice-President. Some (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity.
Both petitioner and the respondent were to serve a six-year term
commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by
a plethora of problems that slowly but surely eroded his popularity.
His sharp descent from power started on October 4, 2000. Ilocos
Sur Governos, Luis "Chavit" Singson, a longtime friend of the
petitioner, went on air and accused the petitioner, his family and
friends of receiving millions of pesos from jueteng lords.[1]
The expose immediately ignited reactions of rage. The next day,
October 5, 2000, Senator Teofisto Guingona Jr, then the Senate
Minority Leader, took the floor and delivered a fiery privilege
speech entitled "I Accuse." He accused the petitioner of receiving

PALISOC & SARMIENTO

some P220 million in jueteng money from Governor Singson from

November 1998 to August 2000. He also charged that the
petitioner took from Governor Singson P70 million on excise tax on
cigarettes intended for Ilocos Sur. The privilege speech was referred
by then Senate President Franklin Drilon, to the Blue Ribbon
Committee (then headed by Senator Aquilino Pimentel) and the
Committee on Justice (then headed by Senator Renato Cayetano)
for joint investigation.[2]
The House of Representatives did no less. The House Committee on
Public Order and Security, then headed by Representative Roilo
Golez, decided to investigate the expose of Governor Singson. On
the other hand, Representatives Heherson Alvarez, Ernesto Herrera
and Michael Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled the air. On October
11, Archbishop Jaime Cardinal Sin issued a pastoral statement in
behalf of the Presbyteral Council of the Archdiocese of Manila,
asking petitioner to step down from the presidency as he had lost
the moral authority to govern.[3] Two days later or on October 13,
the Catholic Bishops Conference of the Philippines joined the cry for
the resignation of the petitioner.[4] Four days later, or on October
17, former President Corazon C. Aquino also demanded that the
petitioner take the "supreme self-sacrifice" of resignation.[5]
Former President Fidel Ramos also joined the chorus. Early on, or on
October 12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services[6] and later asked for
petitioner's resignation.[7] However, petitioner strenuously held on
to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic
advisers, members of the Council of Senior Economic Advisers,
resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and
Washington Sycip.[8] On November 2, Secretary Mar Roxas II also
resigned from the Department of Trade and Industry.[9] On
November 3, Senate President Franklin Drilon, and House Speaker
Manuel Villar, together with some 47 representatives defected from
the ruling coalition, Lapian ng Masang Pilipino.[10]
The month of November ended with a big bang. In a tumultuous
session on November 13, House Speaker Villar transmitted the
Articles of Impeachment[11] signed by 115 representatives, or
more than 1/3 of all the members of the House of Representatives
to the Senate. This caused political convulsions in both houses of
Congress. Senator Drilon was replaced by Senator Pimentel as

78 | P a g e

Senate President. Speaker Villar was unseated by Representative

Fuentabella.[12] On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G.
Davide, Jr., presiding.[13]
The political temperature rose despite the cold December. On
December 7, the impeachment trial started.[14] the battle royale
was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto
Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib
Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez and
now Solicitor General Simeon Marcelo. Serving as defense counsel
were former Chief Justice Andres Narvasa, former Solicitor General
and Secretary of Justice Estelito P. Mendoza, former City Fiscal of
Manila Jose Flamiano, former Deputy Speaker of the House Raul
Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun.
The day to day trial was covered by live TV and during its course
enjoyed the highest viewing rating. Its high and low points were the
constant conversational piece of the chattering classes. The
dramatic point of the December hearings was the testimony of
Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She
testified that she was one foot away from petitioner Estrada when
he affixed the signature "Jose Velarde" on documents involving a
P500 million investment agreement with their bank on February 4,
2000.[15]
After the testimony of Ocampo, the impeachment trial was
adjourned in the spirit of Christmas. When it resumed on January 2,
2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's
Secretary of Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with Mr. Dante
Tan who was facing charges of insider trading.[16] Then came the
fateful day of January 16, when by a vote of 11-10[17] the senatorjudges ruled against the opening of the second envelop which
allegedly contained evidence showing that petitioner held P3.3
billion in a secret bank account under the name "Jose Velarde." The
public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.[18] The
ruling made at 10:00 p.m. was met by a spontaneous outburst of
anger that hit the streets of the metropolis. By midnight, thousands
had assembled at the EDSA Shrine and speeches full of sulphur
were delivered against the petitioner and the eleven (11) senators.

PALISOC & SARMIENTO

On January 17, the public prosecutors submitted a letter to Speaker

Fuentebella tendering their collective resignation. They also filed
their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.[19] Senator Raul Roco quickly moved for
the indefinite postponement of the impeachment proceedings until
the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted
the motion.[20]
January 18 saw the high velocity intensification of the call for
petitioner's resignation. A 10-kilometer line of people holding
lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to
symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes in
Metro Manila to show their concordance. Speakers in the continuing
rallies at the EDSA Shrine, all masters of the physics of persuasion,
attracted more and more people.[21]
On January 19, the fall from power of the petitioner appeared
inevitable. At 1:20 p.m., the petitioner informed Executive
Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff
of the Armed Forces of the Philippines, had defected. At 2:30 p.m.,
petitioner agreed to the holding of a snap election for President
where he would not be a candidate. It did not diffuse the growing
crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado
and General Reyes, together with the chiefs of all the armed
services went to the EDSA Shrine.[22] In the presence of former
Presidents Aquino and Ramos and hundreds of thousands of
cheering demonstrators, General Reyes declared that "on behalf of
your Armed Forces, the 130,000 strong members of the Armed
Forces, we wish to announce that we are withdrawing our support
to this government."[23] A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a similar
stunning
announcement.[24]
Some
Cabinet
secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly
resigned from their posts.[25] Rallies for the resignation of the
petitioner exploded in various parts of the country. To stem the tide
of rage, petitioner announced he was ordering his lawyers to agree
to the opening of the highly controversial second envelop.[26]
There was no turning back the tide. The tide had become a
tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the
first round of negotiations for the peaceful and orderly transfer of
power started at Malacaang's Mabini Hall, Office of the Executive

79 | P a g e

Secretary. Secretary Edgardo Angara, Senior Deputy Executive

Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst.
Secretary Boying Remulla, and Atty. Macel Fernandez, head of the
presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary
Renato de Villa, now Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.[27] Outside the palace, there
was a brief encounter at Mendiola between pro and anti-Estrada
protesters which resulted in stone-throwing and caused minor
injuries. The negotiations consumed all morning until the news
broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.

It also appears that on the same day, January 20, 2001, he signed
the following letter:[31]

At about 12:00 noon, Chief Justice Davide administered the oath to

respondent Arroyo as President of the Philippines.[28] At 2:30 p.m.,
petitioner and his family hurriedly left Malacaang Palace.[29] He
issued the following press statement:[30]

A copy of the letter was sent to former Speaker Fuentebella at 8:30

a.m., on January 20.[32] Another copy was transmitted to Senate
President Pimentel on the same day although it was received only
at 9:00 p.m.[33]

"20 January 2001

On January 22, the Monday after taking her oath, respondent

Arroyo immediately discharged the powers and duties of the
Presidency. On the same day, this Court issued the following
Resolution in Administrative Matter No. 01-1-05-SC, to wit:

STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria MacapagalArroyo took her oath as President of the Republic of the Philippines.
While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of
her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service
to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion
of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"

PALISOC & SARMIENTO

"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice-President shall be the Acting
President.
(Sgd.) JOSEPH EJERCITO ESTRADA"

"A.M. No. 01-1-05-SC - In re: Request of Vice President Gloria

Macapagal-Arroyo to Take her Oath of Office as President of the
Republic of the Philippines before the Chief Justice - Acting on the
urgent request of Vice-President Gloria Macapagal-Arroyo to be
sworn in as President of the Republic of the Philippines, addressed
to the Chief Justice and confirmed by a letter to the Court, dated
January 20, 2001, which request was treated as an administrative
matter, the court Resolved unanimously to confirm the authority
given by the twelve (12) members of the Court then present to the
Chief Justice on January 20, 2001 to administer the oath of office to
Vice President Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any
justiciable case that maybe filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as
ambassadors and special envoys.[34] Recognition of respondent
Arroyo's government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at Malacaang, led by
the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco,
more than a hundred foreign diplomats recognized the government
of respondent Arroyo.[35] US President George W. Bush gave the

80 | P a g e

respondent a telephone call from the White House conveying US

recognition of her government.[36]

Mindanao. Her trust rating increased to 52%. Her presidency is

accepted by majorities in all social classes:

On January 24, Representative Feliciano Belmonte was elected new

Speaker of the House of Representatives.[37] The House then
passed Resolution No. 175 "expressing the full support of the House
of Representatives to the administration of Her Excellency Gloria
Macapagal-Arroyo, President of the Philippines."[38] It also
approved Resolution No. 176 "expressing the support of the House
of Representatives to the assumption into office by Vice President
Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the
nation's goals under the Constitution."[39]

58% in the ABC or middle-to-upper classes, 64% in the D or mass,

and 54% among the E's or very poor class.[50]

On January 26, the respondent signed into law the Solid Waste
Management Act.[40] A few days later, she also signed into law the
Political Advertising Ban and Fair Election Practices Act.[41]
On February 6, respondent Arroyo nominated Senator Teofisto
Guingona, Jr., as her Vice President.[42] the next day, February 7,
the Senate adopted Resolution No. 82 confirming the nomination of
Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan
Ponce Enrile, and John Osmea voted "yes" with reservations, citing
as reason therefore the pending challenge on the legitimacy of
respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were absent.[44]
The House of Representatives also approved Senator Guingona's
nomination in Resolution No. 178.[45] Senator Guingona took his
oath as Vice President two (2) days later.[46]
On February 7, the Senate passed Resolution No. 83 declaring that
the impeachment court is functus officio and has been terminated.
[47] Senator Miriam Defensor-Santiago stated "for the record" that
she voted against the closure of the impeachment court on the
grounds that the Senate had failed to decide on the impeachment
case and that the resolution left open the question of whether
Estrada was still qualified to run for another elective post.[48]
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's
public acceptance rating jacked up from 16% on January 20, 2001
to 38% on January 26, 2001.[49] In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that
61% of the Filipinos nationwide accepted President Arroyo as
replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60%
in the balance of Luzon, by 71% in the Visayas, and 55% in

PALISOC & SARMIENTO

After his fall from the pedestal of power, the petitioner's legal
problems appeared in clusters. Several cases previously filed
against him in the Office of the Ombudsman were set in motion.
These are: (1) OMB Case No. 0-00-1629, filed by Ramon A.
Gonzales on October 23, 2000 for bribery and graft and corruption;
(2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime
and Corruption on November 17, 2000 for plunder, forfeiture, graft
and corruption, bribery, perjury, serious misconduct, violation of
the Code of Conduct for government Employees, etc; (3) OMB Case
No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and
property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by
Leonard de Vera, et al., on November 28, 2000 for bribery, plunder,
indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA
7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B.
Francisco, Jr. on December 4, 2000 for plunder, graft and
corruption.
A special panel of investigators was forthwith created by the
respondent Ombudsman to investigate the charges against the
petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew
Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty.
Emmanuel Laureso. On January 22, the panel issued an Order
directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer
to the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5,
petitioner filed with this Court GR No. 146710-15, a petition for
prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any
further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755,
1756, 1757 and 1758 or in any other criminal complaint that may
be filed in his office, until after the term of petitioner as President is
over and only if legally warranted." Thru another counsel,
petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He
prayed for judgment "confirming petitioner to be the lawful and

81 | P a g e

incumbent President of the Republic of the Philippines temporarily

unable to discharge the duties of his office, and declaring
respondent to have taken her oath as and to be holding the Office
of the President, only in an acting capacity pursuant to the
provisions of the Constitution." Acting on GR Nos. 146710-15, the
Court, on the same day, February 6, required the respondents "to
comment thereon within a non-extendible period expiring on 12
February 2001." On February 13, the Court ordered the
consolidation of GR Nos. 146710-15 and GR No. 146738 and the
filing of the respondents' comments "on or before 8:00 a.m. of
February 15."
On February 15, the consolidated cases were orally argued in a
four-hour hearing. Before the hearing, Chief Justice Davide, Jr.,[51]
and Associate Justice Artemio Panganiban[52] recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag.
They debunked the charge of counsel Saguisag that they have
"compromised themselves by indicating that they have thrown
their weight on one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short period of five (5) days
to file their memoranda and two (2) days to submit their
simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for
copies of resolution and press statement for "Gag Order" on
respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution
on January 20, 2001 declaring the office of the President vacant
and that neither did the Chief Justice issue a press statement
justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers
of the Court under pain of being cited for contempt to refrain from
making any comment or discussing in public the merits of the
cases at bar while they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately
enjoining the respondent Ombudsman from resolving or deciding
the criminal cases pending investigation in his office against
petitioner Joseph E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent Ombudsman may
immediately resolve the cases against petitioner Joseph E. Estrada
seven (7) days after the hearing held on February 15, 2001, which
action will make the cases at bar moot and academic."[53]

PALISOC & SARMIENTO

The parties filed their replies on February 24. On this date, the
cases at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy,
whether petitioner Estrada is a President on leave while respondent
Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition
precedent for the criminal prosecution of petitioner Estrada. In the
negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined
on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases at bar involve a political question
Private respondents[54] raise the threshold issue that the cases at
bar pose a political question, and hence, are beyond the jurisdiction
of this Court to decide. They contend that shorn of its embroideries,
the cases at bar assail the "legitimacy of the Arroyo
administration." They stress that respondent Arroyo ascended the
presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised
the powers of the presidency and that she has been recognized by
foreign governments. They submit that these realities on ground
constitute the political thicket which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here
and abroad, have tried to lift the shroud on political question but its
exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which
rests on the principle of separation of powers and on prudential
considerations, continue to be refined in the mills constitutional
law.[55] In the United States, the most authoritative guidelines to

82 | P a g e

determine whether a question is political were spelled out by Mr.

Justice Brennan in the 1962 case of Baker v. Carr,[56] viz:
"x x x Prominent on the surface on any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a
lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretions; or the
impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on question. Unless one of these formulations is
inextricable from the case at bar, there should be no dismissal for
non justiciability on the ground of a political question's presence.
The doctrine of which we treat is one of 'political questions', not of
'political cases'."
In the Philippine setting, this Court has been continuously
confronted with cases calling for a firmer delineation of the inner
and outer perimeters of a political question.[57] Our leading case is
Tanada v. Cuenco,[58] where this Court, through former Chief
Justice Roberto Concepcion, held that political questions refer "to
those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure."
To a great degree, the 1987 Constitution has narrowed the reach of
the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but
also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government.[59] Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution
directed against the exercise of its jurisdiction.[60] With the new
provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision
did not just grant the Court power of doing nothing. In sync and
symmetry with this intent are other provisions of the 1987
Constitution trimming the so called political thicket. Prominent of
these provisions is section 18 of Article VII which empowers this

PALISOC & SARMIENTO

Court in limpid language to "x x x review, in an appropriate

proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege
of the writ (of habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better
Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino,
et al.[61] and related cases[62] to support their thesis that since
the cases at bar involve the legitimacy of the government of
respondent Arroyo, ergo, they present a political question. A more
cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by
the sovereign people, albeit a peaceful one. No less than the
Freedom Constitution[63] declared that the Aquino government was
installed through a direct exercise of the power of the Filipino
people "in defiance of the provisions of the 1973 Constitution, as
amended." It is familiar learning that the legitimacy of a
government sired by a successful revolution by people power is
beyond judicial scrutiny for that government automatically orbits
out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in character.
The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.[64] In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has
stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I and
EDSA People Power II is clear. EDSA I involves the exercise of the
people power of revolution which overthrew the whole government.
EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of
grievances which only affected the office of the President. EDSA I is
extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II
is intra constitutional and the resignation of the sitting President
that it caused and the succession of the Vice President as President
are subject to judicial review. EDSA I presented political question;
EDSA II involves legal questions. A brief discourse on freedom of
speech and of the freedom of assembly to petition the government
for redress of grievance which are the cutting edge of EDSA People
Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by
Filipinos. Denial of these rights was one of the reasons of our 1898
revolution against Spain. Our national hero, Jose P. Rizal, raised the

83 | P a g e

clarion call for the recognition of freedom of the press of the

Filipinos and included it as among "the reforms sine quibus
non."[65] The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that
Filipinos shall not be deprived (1) of the right to freely express his
ideas or opinions, orally or in writing, through the use of the press
or other similar means; (2) of the right of association for purposes
of human life and which are not contrary to public means; and (3)
of the right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the
instruction to the Second Philippine Commission of April 7, 1900
issued by President McKinley, it is specifically provided "that no law
shall be passed abridging the freedom of speech or of the press or
of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried
over in the Philippine Bill, the Act of Congress of July 1, 1902 and
the Jones Law, the Act of Congress of August 29, 1966.[66]

be clear even to those with intellectual deficits that when the

sovereign people assemble to petition for redress of grievances, all
should listen. For in a democracy, it is the people who count; those
who are deaf to their grievances are ciphers."

Thence on, the guaranty was set in stone in our 1935 Constitution,
[67] and the 1973[68] Constitution. These rights are now safely
ensconced in section 4, Article III of the 1987 Constitution, viz:

II

"Sec. 4. No law shall be passed abridging the freedom of speech, of

expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances."

We now slide to the second issue. None of the parties considered

this issue as posing a political question. Indeed, it involves a legal
question whose factual ingredient is determinable from the records
of the case and by resort to judicial notice. Petitioner denies he
resigned as President or that he suffers from a permanent disability.
Hence, he submits that the office of the President was not vacant
when respondent Arroyo took her oath as president.

The indispensability of the people's freedom of speech and of

assembly to democracy is now self-evident. The reasons are well
put by Emerson: first, freedom of expression is essential as a
means of assuring individual fulfillment; second, it is an essential
process for advancing knowledge and discovering truth; third, it is
essential to provide for participation in decision-making by all
members of society; and fourth, it is a method of achieving a more
adaptable and hence, a more stable community of maintaining the
precarious balance between healthy cleavage and necessary
consensus."[69] In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the
progress of a society can take place without destroying the
society."[70] In Hague v. Committee for Industrial Organization,[71]
this function of free speech and assembly was echoed in the
amicus curiae brief filed by the Bill of Rights Committee of the
American Bar Association which emphasized that "the basis of the
right of assembly is the substitution of the expression of opinion
and belief by talk rather than force; and this means talk for all and
by all."[72] In the relatively recent case of Subayco v.
Sandiganbayan,[73] this Court similarly stressed that "... it should

PALISOC & SARMIENTO

Needless to state, the cases at bar pose legal and not political
questions. The principal issues for resolution require the proper
interpretation of certain provisions in the 1987 Constitution,
notably section 1 of Article II,[74] and section 8[75]of Article VII,
and the allocation of governmental powers under section 11[76] of
Article VII. The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the correct
calibration of the right of petitioner against prejudicial publicity. As
early as the 1803 case of Marbury v. Madison,[77] the doctrine has
been laid down that " it is emphatically the province and duty of
the judicial department to say what the law is . . ." Thus,
respondent's invocation of the doctrine of political is but a foray in
the dark.

Whether or not the petitioner resigned as President

The issue brings under the microscope of the meaning of section 8,

Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from office
or resignation of the President, the Vice President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then
acts as President until President or Vice President shall have been
elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or
should be considered resigned as of January 20, 2001 when

84 | P a g e

respondent took her oath as the 14th President of the Republic.

Resignation is not a high level legal abstraction. It is a factual
question and its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by acts of
relinquishment.[78] The validity of a resignation is not governed by
any formal requirement as to form. It can be oral. It can be written.
It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.

To appreciate the public pressure that led to the resignation of the

petitioner, it is important to follow the succession of events after
the expos of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of
petitioner's alleged misgovernance in the Blue Ribbon investigation
spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near
cipher chance of succeeding snowballed. In express speed, it
gained the signatures of 115 representatives or more than 1/3 of
the House of Representatives. Soon, petitioner's powerful political
allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and Former Speaker Villar
defected with 47 representatives in tow. Then, his respected senior
economic advisers resigned together with his Secretary of Trade
and Industry.

As events approached January 20, we can have an authoritative

window on the state of mind of the petitioner. The window is
provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily
Inquirer.[79] The Angara Diary reveals that in morning of January
19, petitioner's loyal advisers were worried about the swelling of
the crowd at EDSA, hence, they decided to crate an ad hoc
committee to handle it. Their worry would worsen. At 1:20 p.m.,
petitioner pulled Secretary Angara into his small office at the
presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas
na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"[80]
An hour later or at 2:30, p.m., the petitioner decided to call for a
snap presidential election and stressed he would not be a
candidate. The proposal for a snap election for president in May
where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00
p.m., General Reyes joined the sea of EDSA demonstrators
demanding the resignation of the petitioner and dramatically
announced the AFP's withdrawal of support from the petitioner and
their pledge of support to respondent Arroyo. The seismic shift of
support left petitioner weak as a president. According to Secretary
Angara, he asked Senator Pimentel to advise petitioner to consider
the option of "dignified exit or resignation."[81] Petitioner did nor
disagree but listened intently.[82] The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner
the urgency of making a graceful and dignified exit. He gave the
proposal a sweetener by saying that petitioner would allowed to go
abroad with enough funds to support him and his family.[83]
Significantly, the petitioner expressed no objection to the
suggestion for a graceful and dignified exit but said he would never
leave the country.[84] At 10:00 p.m., petitioner revealed to
Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have
five days to a week in the palace."[85] This is proof that petitioner
had reconciled himself to the reality that he had to resign. His mind
was already concerned with the five-day grace period he could stay
in the palace. It was a matter of time.

As the political isolation of the petitioner worsened, the people's

call for his resignation intensified. The call reached a new
crescendo when the eleven (11) members of the impeachment
tribunal refused to open the second envelope. It sent the people to
paroxysms of outrage. Before the night of January 16 was over, the
EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.

The pressure continued piling up. By 11:00 p.m., former President

Ramos called up Secretary Angara and requested, "Ed,
magtulungan tayo para magkaroon tayo ng (let's cooperate to
ensure a) peaceful and orderly transfer of power."[86] There was no
defiance to the request. Secretary Angara readily agreed. Again, we
note that at this stage, the problem was already about a peaceful
and orderly transfer of power. The resignation of the petitioner was
implied.

In the cases at bar, the facts shows that petitioner did not write any
formal letter of resignation before he evacuated Malacaang Palace
in the Afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner
resigned has to be determined from his acts and omissions before,
during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as
President.

PALISOC & SARMIENTO

85 | P a g e

The first negotiation for a peaceful and orderly transfer of power

immediately started at 12:20 a.m. of January 20, that fateful
Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2)
the guarantee of the safety of the petitioner and his family, and (3)
the agreement to open the second envelope to vindicate the name
of the petitioner.[87] Again, we note that the resignation of
petitioner was not a disputed point. The petitioner cannot feign
ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry
in the Angara Diary shows the reaction of the petitioner, viz:
"x x x
I explain what happened during the first round of negotiations. The
President immediately stresses that he just wants the five-day
period promised by Reyes, as well as to open the second envelope
to clear his name.
If the envelope is opened, on Monday, he says, he will leave by
Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado
nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am
very tired. I don't want any more of this - it's too painful. I'm tired of
the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go."[88]
Again, this is high grade evidence that the petitioner has resigned.
The intent to resign is clear when he said "x x x Ayoko na masyado
nang masakit." " Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to
the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. - Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by
Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day,
20 January 2001, that will be effective on Wednesday, 24 January

PALISOC & SARMIENTO

2001, on which day the Vice President will assume the Presidency
of the Republic of the Philippines.
2. Beginning today, 20 January 2001, the transition process for the
assumption of the new administration shall commence, and
persons designated by the Vice president to various positions and
offices of the government shall start their orientation activities in
coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National
Police shall function under the Vice President as national military
and police effective immediately.
4. The Armed Forces of the Philippines, through its Chief of Staff,
shall guarantee the security of the president and his family as
approved by the national military and police authority (Vice
President).
5. It is to be noted that the Senate will open the second envelope in
connection with the alleged savings account of the President in the
Equitable PCI Bank in accordance with the rules of the Senate,
pursuant to the request to the Senate President.'
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective
principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January
2001, at which time President Joseph Ejercito Estrada will turn over
the presidency to Vice President Gloria Macapagal-Arroyo.
2. In return, President Estrada and his families are guaranteed
security and safety of their person and property throughout their
natural lifetimes. Likewise, President Estrada and his families are
guaranteed freedom from persecution or retaliation from
government and the private sector throughout their natural
lifetimes.
This commitment shall be guaranteed by the Armed Forces of the
Philippines ('AFP') through the Chief of Staff, as approved by the
national military and police authorities - Vice President
(Macapagal).
3. Both parties shall endeavor to ensure that the Senate siting as
an impeachment court will authorize the opening of the second
envelope in the impeachment trial as proof that the subject savings
account does not belong to President Estrada.

86 | P a g e

4. During the five-day transition period between 20 January 2001

and 24 January 2001 (the "Transition Period"), the incoming Cabinet
members shall receive an appropriate briefing from the outgoing
Cabinet officials as part of the orientation program.
During the Transition Period, the AFP and the Philippine National
Police ('PNP') shall function under Vice President (Macapagal) as
national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP
director general shall obtain all the necessary signatures as affixed
to this agreement and insure faithful implementation and
observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public
statement in the form and tenor provided for in 'Annex A'
heretofore attached to this agreement.'"[89]
The second round of negotiation cements the reading that the
petitioner has resigned. It will be noted that during this second
round of negotiation, the resignation of the petitioner was again
treated as a given fact. The only unsettled points at that time were
the measures to be undertaken by the parties during and after the
transition period.
According to Secretary Angara, the draft agreement which was
premised on the resignation of the petitioner was further refined. It
was then signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara Diary narrates
the fateful events, viz:[90]
"x x x
11:00 a.m. - Between General Reyes and myself, there is a firm
agreement on the five points to effect a peaceful transition. I can
hear the general clearing all these points with a group he is with. I
hear voices in the background.
Agreement
The agreement starts: 1. The President shall resign today, 20
January 2001, which resignation shall be effective on 24 January
2001, on which day the Vice President will assume the presidency
of the Republic of the Philippines.

2. The transition process for the assumption of the new

administration shall commence on 20 January 2001, wherein
persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff,
shall guarantee the safety and security of the President and his
families throughout their natural lifetimes as approved by the
national military and police authority - Vice President.
4. The AFP and the Philippine National Police ('PNP') shall function
under the Vice President as national military and police authorities.
5. Both parties request the impeachment court to open the second
envelope in the impeachment trial, the contents of which shall be
offered as proof that the subject savings account does not belong
to the President.
The Vice President shall issue a public statement in the form and
tenor provided for in Annex 'B' heretofore attached to this
agreement.
xxx
11:20 a.m. - I am all set to fax General Reyes and Nene Pimentel
our agreement, signed by our side and awaiting the signature of
the United Opposition.
And then it happens. General Reyes calls me to say that the
Supreme Court has decided that Gloria Macapagal-Arroyo is
President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement
(Why couldn't you wait? What about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (It's over, sir).'
I asked him: 'Di yung transition period, moot and academic na?'
And General Reyes answer: 'Oo nga, i-delete na natin, sir (Yes,
we're deleting that part).'
Contrary to subsequent reports, I do not react and say that there
was a double cross.
But I immediately instruct Macel to delete the first provision on
resignation since this matter is already moot and academic. Within
moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel
to Nene Pimentel and General Reyes.

xxx
The rest of the agreement follows:

PALISOC & SARMIENTO

87 | P a g e

I direct Demaree Ravel to rush the original document to General

Reyes for the signatures of the other side, as it is important that
the provision on security, at least, should be respected.
I then advise the President that the Supreme Court has ruled that
Chief Justice Davide will administer the oath to Gloria at 12 noon.
The president is too stunned for words.
Final meal
12 noon - Gloria takes her oath as President of the Republic of the
Philippines.
12:20 p.m. - The PSG distributes firearms to some people inside the
compound.
The President is having his final meal at the Presidential Residence
with the few friends and Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line
of defense at Mendiola. Only the PSG is there to protect the Palace,
since the police and military have already withdrawn their support
for the President.
1 p.m. - The President's personal staff is rushing to pack as many of
the Estrada family's personal possessions as they can.
During lunch, Ronie Puno mentions that the President needs to
release a final statement before leaving Malacaang.
The statement reads: 'At twelve o'clock noon today, Vice President
Gloria Macapagal-Arroyo took her oath as President of the Republic
of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as president, I do not wish to
be a factor that will prevent the restoration of unity and order in our
civil society.
It is for this reason that I now leave Malacaang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service
to our people. I will not shrik from any future challenges that may
come ahead in the same service of our country.

PALISOC & SARMIENTO

I call on all my supporters and followers to join me in the promotion

of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!'"
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be
doubted. It was confirmed by his leaving Malacaang. In the press
release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit
with the reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of peace
and in order to begin the healing process of our nation. He did not
say he was leaving the Palace due to any kind of inability and that
he was going to re-assume the presidency as soon as the disability
disappears; (3) he expressed his gratitude to the people for the
opportunity to serve them. Without doubt, he was referring to the
past opportunity given him to serve the people as President; (4) he
assured that he will not shirk from any future challenge that may
come ahead in the same service of our country. Petitioner's
reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his
supporters to join him in the promotion of a constructive national
spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give
up the presidency. The press release was petitioner's valedictory,
his final act of farewell. His presidency is now in the past tense.
It is, however, urged that the petitioner did not resign but only took
a temporary leave of absence due to his inability to govern. In
support of this thesis, the letter dated January 20, 2001 of the
petitioner sent to Senate President Pimentel and Speaker
Fuentebella is cited. Again, we refer to the said letter, viz:
"Sir
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice President shall be the Acting
President.
(Sgd.) Joseph Ejercito Estrada"

88 | P a g e

To say the least, the above letter is wrapped in mystery.[91] The

pleadings filed by the petitioner in the cases at bar did not discuss,
nay even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as
strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was
not the slightest hint of its existence when he issued his final press
release. It was all too easy for him to tell the Filipino people in his
press release that he was temporarily unable to govern and that he
was leaving the reins of government to respondent Arroyo for the
time being. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it was
prepared before the press release of the petitioner clearly showing
his resignation from the presidency, then the resignation must
prevail as a later act. If, however, it was prepared after the press
release, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a
changing caprice nor of a whimsical will especially if the resignation
is the result of his repudiation by the people. There is another
reason why this Court cannot give any legal significance to
petitioner's letter and this shall be discussed in issue number III of
this Decision.
After petitioner contended that as a matter of fact he did not
resign, he also argues that he could not resign as a matter of law.
He relies on section 12 of RA No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, which allegedly prohibits his
resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a
prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly
provide any comfort to the petitioner. RA No. 3019 originated from
Senate Bill No. 293. The original draft of the bill, when it was
submitted to the Senate, did not contain a provision similar to
section 12 of the law as it now stands. However, in his sponsorship
speech, Senator Arturo Tolentino, the author of the bill, "reserved to
propose during the period of amendments the inclusion of a
provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under
administrative investigation, shall be allowed to voluntarily resign
or retire."[92] During the period of amendments, the following
provision was inserted as section 15:

PALISOC & SARMIENTO

"Sec. 15. Termination of office - No public official shall be allowed to

resign or retire pending an investigation, criminal or administrative,
or pending a prosecution against him, for any offense under the Act
or under the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official from office shall not
be a bar to his prosecution under this Act for an offense committed
during his incumbency."[93]
The bill was vetoed by then President Carlos P. Garcia who
questioned the legality of the second paragraph of the provision
and insisted that the President's immunity should extend even after
his tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill
No. 293, was thereafter passed. Section 15 above became section
13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President which
was one of the reasons for the veto of the original bill. There was
hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of
the law ought to be obvious. It is to prevent the act of resignation
or retirement from being used by a public official as a protective
shield to stop the investigation of a pending criminal or
administrative case against him and to prevent his prosecution
under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to
render service for that would be a violation of his constitutional
right.[94] A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or
retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not
cause the dismissal of the criminal or administrative proceedings
against him. He cannot use his resignation or retirement to avoid
prosecution.
There is another reason why petitioner's contention should be
rejected. In the cases at bar, the records show that when petitioner
resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-001756, 0-00-1757 and 0-00-1758. While these cases have been filed,
the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the
sitting President then, petitioner was immune from suit. Technically,
the said cases cannot be considered as pending for the

89 | P a g e

Ombudsman lacked jurisdiction to act on them. Section 12 of RA

No. 3019 cannot therefore be invoked by the petitioner for it
contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from
suit of a sitting President.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA 3019, bars
him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming
arguendo that it is an administrative proceeding, it can not be
considered pending at the time petitioner resigned because the
process already broke down when a majority of the senator-judges
voted against the opening of the second envelope, the public and
private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings
were postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.
III
Whether or not the petitioner is only temporarily unable to
act as President.
We shall now tackle the contention of the petitioner that he is
merely temporarily unable to perform the powers and duties of the
presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of
petitioner sent on the same day to Senate President Pimentel and
Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has
no power to adjudge the inability of the petitioner to discharge the
powers and duties of the presidency. His significant submittal is
that "Congress has the ultimate authority under the Constitution to
determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of Article
VII."[95] This contention is the centerpiece of petitioner's stance
that he is a President on leave and respondent Arroyo is only an
Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmit to the President of the
Senate and the Speaker of the House of Representatives his written
declaration that he is unable to discharge the powers and duties of
his office, and until he transmits to them a written declaration to

PALISOC & SARMIENTO

the contrary, such powers and duties shall be discharged by the

Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to
the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President of the
Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session within twelve days after it is
required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge
the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the
powers and duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming
inability to the Senate President and Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office
as President on January 20, 2001 at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representative
passed on January 24, 2001 House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House
Resolution No. 176[97]which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE

90 | P a g e

REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS

AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on
the ability of former President Joseph Ejercito Estrada to effectively
govern, the Armed Forces of the Philippines, the Philippine National
Police and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme
Court, Vice President Gloria Macapagal-Arroyo was sworn in as
President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international
community had extended their recognition to Her Excellency, Gloria
Macapagal-Arroyo as President of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
espoused a policy of national healing and reconciliation with justice
for the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government
cannot be achieved if it is divided, thus by reason of the
constitutional duty of the House of Representatives as an institution
and that of the individual members thereof of fealty to the supreme
will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove
all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives
to exert all efforts to unify the nation, to eliminate fractious tension,
to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative
of the various segments of the whole nation;
WHEREAS, without surrendering its independence, it is vital for the
attainment of all the foregoing, for the House of Representatives to
extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest
demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to
the assumption into office by Vice President Gloria MacapagalArroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on
January 24, 2001.

PALISOC & SARMIENTO

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
On February 7, 2001, the House of the Representatives passed
House Resolution No. 178[98] which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGALARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due
to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the
President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
nominated Senate Minority Leader Teofisto T. Guingona Jr., to the
position of Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant
endowed with integrity, competence and courage; who has served
the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling
qualities of true statesmanship, having served the government in
various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines - qualities
which merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives,
That the House of Representatives confirms the nomination of
Senator Teofisto T. Guingona, Jr. as the Vice President of the
Republic of the Philippines.
Adopted,
(Sgd) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on
February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability,
some twelve (12) members of the Senate signed the following:
"RESOLUTION

91 | P a g e

WHEREAS, the recent transition in government offers the nation an

opportunity for meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome
challenges the nation needs unity of purpose and resolute cohesive
resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for
vital legislative measures in unity despite diversities in
perspectives;
WHEREFORE, we recognize and express support to the new
government of President Gloria Macapagal-Arroyo and resolve to
discharge our duties to attain desired changes and overcome the
nation's challenges."[99]
On February 7, the Senate also passed Senate Resolution No.
82[100] which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGALARROYO'S NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is it vacancy in the Office of the Vice-President due
to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the
President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the
position of Vice President of the Republic of the Phillippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed
with integrity, competence, and courage; who has served the
Filipino people with dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities
of true statesmanship, having served the government in various
capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice. Senator of the land - which qualities
merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the
nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the
Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"

PALISOC & SARMIENTO

On the same date, February 7, the Senate likewise passed Senate

Resolution No. 83[101] which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS
FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that
the Impeachment Court is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of
Monday, January 15, Tuesday, January 16 and Wednesday, January
17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court
including the 'second envelope' be transferred to the Archives of
the Senate for proper safekeeping and preservation in accordance
with the Rules of the Senate. Disposition and retrieval thereof shall
be made only upon written approval of the Senate President.
Resolved, finally. That all parties concerned be furnished copies of
this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84
"certifying to the existence of a vacancy in the Senate and calling
on the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the
senatorial candidate garnering the thirteenth (13th) highest
number of votes shall serve only for the unexpired term of Senator
Teofisto T. Guingona, Jr."
(6) Both houses of Congress started sending bills to be signed into
law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning
Cabinet, without any recognition from any sector of government,
and without any support from the Armed Forces of the Philippines
and the Philippine National Police, the petitioner continues to claim
that his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that the
inability of petitioner Estrada is no longer temporary. Congress has
clearly rejected petitioner's claim of inability.

92 | P a g e

The question is whether this Court has jurisdiction to review the

claim of temporary inability of petitioner Estrada and thereafter
revise the decision of both Houses of Congress recognizing
respondent Arroyo as President of the Philippines. Following Taada
v. Cuenco,[102] we hold that this Court cannot exercise its judicial
power for this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative x x x branch of the
government." Or to use the language in Baker vs. Carr,[103] there
is a "textually demonstrable constitutional commitment of the issue
to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it." Clearly,
the Court cannot pass upon petitioner's claim of inability to
discharge the powers and duties of the presidency. The question is
political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue which cannot be decided by
this Court without transgressing the principle of separation of
powers.
In fine, even if the petitioner can prove that he did not resign, still,
he cannot successfully claim that he is a President on leave on the
ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure President made by a co-equal branch of
government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit. Assuming
he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed
against him before the respondent Ombudsman should be
prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all
kinds of suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal
history on executive immunity will be most enlightening. The
doctrine of executive immunity in this jurisdiction emerged as a
case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and
Crossfield,[104] the respondent Tiaco, a Chinese citizen, sued
petitioner W. Cameron Forbes, Governor-General of the Philippine
Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief
of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In

PALISOC & SARMIENTO

granting a writ of prohibition, this Court, speaking thru Mr. Justice

Johnson, held:
"The principle of nonliability, as herein enunciated, does not mean
that the judiciary has no authority to touch the acts of the
Governor-General; that he may, under cover of his office, do what
he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or legislatures.
This does not mean, either, that a person injured by the executive
authority by an act unjustifiable under the law has no remedy, but
must submit in silence. On the contrary, it means, simply, that the
Governor-General, like the judges of the courts and the members of
the Legislature, may not be personally mulcted in civil damages for
the consequences of an act executed in the performance of his
official duties. The judiciary has full power to, and will, when the
matter is properly presented to it and the occasion justly warrants
it, declare an act of the Governor-General illegal and void and place
as nearly as possible in status quo any person who has been
deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country,
when his personal or property rights have been invaded, even by
the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which
result from the performance of his official duty, any more that it can
a member of the Philippine Commission or the Philippine Assembly.
Public policy forbids it.
Neither does this principle of nonliability mean that the chief
executive may not be personally sued at all in relation to acts which
he claims to perform as such official. On the contrary, it clearly
appears from the discussion heretofore had, particularly that
portion which touched the liability of judges and drew an analogy
between such liability and that of the Governor-General, that the
latter is liable when he acts in a case so plainly outside of his power
and authority that he can not be said to have exercise discretion in
determining whether or not he had the right to act. What is held
here is that he will be protected from personal liability for damages
not only when he acts within his authority, but also when he is
without authority, provided he actually used discretion and
judgment, that is, the judicial faculty, in determining whether he
had authority to act or not. In other words, he is entitled to
protection in determining the question of his authority. If he decide
wrongly, he is still protected provided the question of his authority
was one over which two men, reasonably qualified for that position,
might honestly differ; but he is not protected if the lack of authority

93 | P a g e

to act is so plain that two such men could not honestly differ over
its determination. In such case, he acts, not as Governor-General
but as a private individual, and, as such, must answer for the
consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief
Executive was not granted immunity from suit, viz: "x x x. Action
upon important matters of state delayed; the time and substance
of the chief executive spent in wrangling litigation; disrespect
engendered for the person of one of the highest officials of the
State and for the office he occupies; a tendency to unrest and
disorder; resulting in a way, in a distrust as to the integrity of
government itself."[105]
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the
martial law years under the late President Ferdinand E. Marcos and
the 1973 Constitution was born. In 1981, it was amended and one
of the amendments involved executive immunity. Section 17,
Article VII stated:
"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by him
or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent
President referred to in Article XVII of this Constitution."
In his second Vicente G. Sinco Professional Chair Lecture entitled, "
Presidential Immunity And All The King's Men: The Law Of Privilege
As A Defense To Actions For Damages,"[106] petitioner's learned
counsel, former Dean of the UP college of Law, Atty. Pacifico
Agabin, brightlined the modifications effected by this constitutional
amendment on the existing law on executive privilege. To quote his
disquisition:
"In the Philippines, though, we sought to do the Americans one
better by enlarging and fortifying the absolute immunity concept.
First, we extended it to shield the President not only from civil
claims but also from criminal cases and other claims. Second, we
enlarged its scope so that it would cover even acts of the President
outside the scope of official duties. And third, we broadened its
coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who
acted upon orders of the President. It can be said that at that point
most of us were suffering from AIDS (or absolute immunity defense
syndrome)."

PALISOC & SARMIENTO

The Opposition in the then Batasan Pambansa sought the repeal of

this Marcosian concept of executive immunity in the 1973
Constitution. The move was led by then Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after
incumbency immunity granted to President Marcos violated the
principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no
wrong."[107] The effort failed.
The 1973 Constitution ceased to exist when President Marcos was
ousted from office by the People Power revolution in 1986. When
the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The
following explanation was given by delegate J. Bernas, viz:[108]
"Mr. Suarez. Thank you.
The last question is with reference to the committee's omitting in
the draft proposal the immunity provision for the President. I agree
with Commissioner Nolledo that the Committee did very well in
striking out this second sentence, at the very least, of the original
provision on immunity from suit under the 1973 Constitution. But
would the Committee members not agree to a restoration of at
least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him
that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing
litigations almost daily?
Fr. Bernas. The reason for the omission is that we consider it
understood in present jurisprudence that during his tenure he is
immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that explicit
and to add other things.
Mr. Suarez. On that understanding, I will not press for any more
query, Madam President.
I thank the Commissioner for the clarification."
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for

94 | P a g e

the reason that he must first be convicted in the impeachment

proceedings. The impeachment trial of petitioner Estrada was
aborted by the walkout of the prosecutors and by the events that
led to his loss of the presidency. Indeed, on February 7, 2001, the
Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."[109] Since the
Impeachment Court is now functus officio, it is untenable for
petitioner to demand that he should first be impeached and then
convicted before he can be prosecuted. The plea if granted, would
put a perpetual bar against his prosecution. Such a submission has
nothing to commend itself for it will place him in a better situation
than a non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a criminal
prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings
have become moot due to the resignation of the President, the
proper criminal and civil cases may already be filed against him,
viz:[110]
"x x x
Mr. Aquino. On another point, if an impeachment proceeding has
been filed against the President, for example, and the President
resigns before judgment of conviction has been rendered by the
impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove
one from office, then his resignation would render the case moot
and academic. However, as the provision says, the criminal and
civil aspects of it may continue in the ordinary courts."
This is in accord with our ruling in In re: Saturnino
Bermudez[111]that "incumbent Presidents are immune from suit or
from being brought to court during the period of their incumbency
and tenure" but not beyond. Considering the peculiar circumstance
that the impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner Estrada
cannot demand as a condition sine qua non to his criminal
prosecution before the Ombudsman that he be convicted in the
impeachment proceedings. His reliance in the case of Lecaroz vs.
Sandiganbayan[112] and related cases[113]are inapropos for they
have a different factual milieu.
We now come to the scope of immunity that can be claimed by
petitioner as a non-sitting President. The cases filed against
petitioner Estrada are criminal in character. They involve plunder,

PALISOC & SARMIENTO

bribery and graft and corruption. By no stretch of the imagination

can these crimes, especially plunder which carries the death
penalty, be covered by the allege mantle of immunity of a nonsitting president. Petitioner cannot cite any decision of this Court
licensing the President to commit criminal acts and wrapping him
with post-tenure immunity from liability. It will be anomalous to
hold that immunity is an inoculation from liability for unlawful acts
and omissions. The rule is that unlawful acts of public officials are
not acts of the State and the officer who acts illegally is not acting
as such but stands in the same footing as any other trespasser.
[114] Indeed, a critical reading of current literature on executive
immunity will reveal a judicial disinclination to expand the privilege
especially when it impedes the search for truth or impairs the
vindication of a right. In the 1974 case of US v. Nixon,[115] US
President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his
conversations with aids and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct
justice and other offenses which were committed in a burglary of
the Democratic National Headquarters in Washington's Watergate
Hotel during the 1972 presidential campaign. President Nixon
himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that
the President was not subject to judicial process and that he should
first be impeached and removed from office before he could be
made amenable to judicial proceedings. The claim was rejected by
the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In
the 1982 case of Nixon v. Fitzgerald,[116] the US Supreme Court
further held that the immunity of the President from civil damages
covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v.
Jones[117] where it held that the US President's immunity from
suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch
the scope of executive immunity in our jurisdiction. One of the
great themes of the 1987 Constitution is that a public office is a
public trust.[118] It declared as a state policy that "(t)he State shall
maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."[119]
It ordained that "(p)ublic officers and employees must at all times
be accountable to the people, serve them with utmost

95 | P a g e

responsibility, integrity, loyalty, and efficiency, act with patriotism

and justice, and lead modest lives."[120] It set the rule that "(t)he
right of the State to recover properties unlawfully acquired by
public officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, laches or
estoppel."[121] It maintained the Sandiganbayan as an anti-graft
court.[122] It created the office of the Ombudsman and endowed it
with enormous powers, among which is to "(i)nvestigate on its own,
or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient."[123] The
Office of the Ombudsman was also given fiscal autonomy.[124]
These constitutional policies will be devalued if we sustain
petitioner's claim that a non-sitting president enjoys immunity from
suit for criminal acts committed during his incumbency.
V
Whether or not the prosecution of petitioner Estrada should
be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should
be stopped from conducting the investigation of the cases filed
against him due to the barrage of prejudicial publicity on his guilt.
He submits that the respondent Ombudsman has developed bias
and is all set to file the criminal cases in violation of his right to due
process.
There are two (2) principal legal and philosophical schools of
thought on how to deal with the rain of unrestrained publicity
during the investigation and trial of high profile cases.[125] The
British approach the problem with the presumption that publicity
will prejudice a jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to fair trial suffers a
threat.[126] The American approach is different. US courts assume
a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have
developed different strains of tests to resolve this issue, i.e.,
substantial probability of irreparable harm, strong likelihood, clear
and present danger, etc.
This is not the first time the issue of trial by publicity has been
raised in this Court to stop the trials or annul convictions in high
profile criminal cases.[127] In People vs. Teehankee, Jr.,[128] later
reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129]
we laid down the doctrine that:

PALISOC & SARMIENTO

"We cannot sustain appellant's claim that he was denied the right
to impartial trial due to prejudicial publicity. It is true that the print
and broadcast media gave the case at bar pervasive publicity, just
like all high profile and high stake criminal trials. Then and now, we
now rule that the right of an accused to a fair trial is not
incompatible to a free press. To be sure, responsible reporting
enhances an accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the handmaiden of
effective judicial administration, especially in the criminal field x x
x. The press does not simply publish information about trials but
guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and
criticism.
Pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. The mere fact that the trial of appellant was
given a day-to-day, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of the trial judge
and impaired his impartiality. For one, it is impossible to seal the
minds of members of the bench from pre-trial and other off-court
publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our
breakfast tables and right to our bedrooms. These news form part
of our everyday menu of the facts and fictions of life. For another,
our idea of a fair and impartial judge is not that of a hermit who is
out of touch with the world. We have not installed the jury system
whose members are overly protected from publicity lest they lose
their impartiality. x x x x x x x x x. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera
performances of parties to a litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their
impartiality.
At best, appellant can only conjure possibility of prejudice on the
part of the trial judge due to the barrage of publicity that
characterized the investigation and trial of the case. In Martelino, et
al. v. Alejandro, et al., we rejected this standard of possibility of
prejudice and adopted the test of actual prejudice as we ruled that
to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the
case at bar, the records do not show that the trial judge developed
actual bias against appellant as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge
acquired a fixed opinion as a result of prejudicial publicity which is
incapable if change even by evidence presented during the trial.

96 | P a g e

Appellant has the burden to prove this actual bias and he has not
discharged the burden."
We expounded further on this doctrine in the subsequent case of
Webb vs. Hon. Raul de Leon, etc.[130] and its companion cases.
viz.:
"Again, petitioners raise the effect of prejudicial publicity on their
right to due process while undergoing preliminary investigation. We
find no procedural impediment to its early invocation considering
the substantial risk to their liberty while undergoing a preliminary
investigation.
xxx
The democratic settings, media coverage of trials of sensational
cases cannot be avoided and oftentimes, its excessiveness has
been
aggravated
by
kinetic
developments
in
the
telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of
which are sober and sublime. Indeed, even the principal actors in
the case - the NBI, the respondents, their lawyers and their
sympathizers - have participated in this media blitz. The possibility
of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public.
Inn the seminal case of Richmond Newspapers, Inc. v. Virginia, it
was wisely held:
'x x x
(a) The historical evidence of the evolution of the criminal trial in
Anglo-American justice demonstrates conclusively that the time
this Nation's organic laws were adopted, criminal trials both here
and in England had long been presumptively open, thus giving
assurance that the proceedings were conducted fairly to all
concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public
trials was recognized: when a shocking crime occurs, a community
reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic
purpose, providing an outlet for community concern, hostility, and
emotion. To work effectively, it is important that society's criminal
process 'satisfy the appearance of justice,' Offutt v. United States,

PALISOC & SARMIENTO

348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided

by allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in
centuries past, it must be concluded that a presumption of
openness inheres in the very nature of a criminal trial under this
Nation's system of justice, Cf., e.g., Levine v. United States, 362 US
610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly
guaranteed by the First Amendment, share a common core purpose
of assuring freedom of communication on matters relating to the
functioning of government. In guaranteeing freedoms such as those
of speech and press, the First Amendment can be read as
protecting the right of everyone to attend trials so as give meaning
to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit
government from summarily closing courtroom doors which had
long been open to the public at the time the First Amendment was
adopted. Moreover, the right of assembly is also relevant, having
been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment
rights with which it was deliberately linked by the draftsmen. A trial
courtroom is a public place where the people generally - and
representatives of the media - have a right to be present, and
where their presence historically has been thought to enhance the
integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its
terms guarantees to the public the right to attend criminal trials,
various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees
of the First Amendment: without the freedom to attend such trials,
which people have exercised for centuries, important aspects of
freedom of speech and of the press could be eviscerated.'
Be that as it may, we recognize that pervasive and prejudicial
publicity under certain circumstances can deprive an accused of his
due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro,
et al., we held that to warrant a finding of prejudicial publicity there
must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, we find nothing in the records that will
prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the

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subliminal effects of publicity on the sense of fairness of the DOJ

Panel, for these are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed,
their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of
time the investigation was conducted despite its summary nature
and the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no instance,
we note, did petitioners seek the disqualification of any member of
the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough
evidence to warrant this Court to enjoin the preliminary
investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge
his burden of proof.[131] He needs to show more weighty social
science evidence to successfully prove the impaired capacity of a
judge to render a bias-free decision. Well to note, the cases against
the petitioner are still undergoing preliminary investigation by a
special panel of prosecutors in the office of the respondent
Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have
already been infected by bias because of the pervasive prejudicial
publicity against him. Indeed, the special panel has yet to come out
with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote petitioner's submission,
the respondent Ombudsman "has been influenced by the barrage
of slanted news reports, and he has buckled to the threats and
pressures directed at him by the mobs."[132] News reports have
also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner[133]and it is
postulated that the prosecutors investigating the petitioner will be
influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is
insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as
to his alleged prejudice and the presumption of good faith and

PALISOC & SARMIENTO

regularity in the performance of official duty to which he is entitled.

Nor can we adopt the theory of derivative prejudice of petitioner,
i.e., that the prejudice of respondent Ombudsman flows to his
subordinates. In truth, our Revised Rules of Criminal Procedure,
give investigating prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their
superiors.[134] They can be reversed but they can not be
compelled to change their recommendations nor can they be
compelled to prosecute cases which they believe deserve
dismissal. In other words, investigating prosecutors should not be
treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and
the latter believes that the finding of probable cause against him is
the result of bias, he still has the remedy of assailing it before the
proper court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases against the
petitioner will now acquire a different dimension and then move to
a new stage - - - the Office of the Ombudsman. Predictably, the call
from the majority for instant justice will hit a higher decibel while
the gnashing of teeth of the minority will be more threatening. It is
the sacred duty of the respondent Ombudsman to balance the right
of the State to prosecute the guilty and the right of an accused to a
fair investigation and trial which has been categorized as the "most
fundamental of all freedoms."[135] To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the
obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide
the restraint against what Lord Bryce calls "the impatient
vehemence of the majority." Rights in a democracy are not decided
by the mob whose judgment is dictated by rage and not by reason.
Nor are rights necessarily resolved by the power of number for in a
democracy, the dogmatism of the majority is not and should never
be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the
right of the minority to convince the majority that it is wrong.
Tolerance of multiformity of thoughts, however offensive they may
be, is the key to man's progress from the cave to civilization. Let us
not throw away that key just to pander to some people's prejudice.

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IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada

challenging the respondent Gloria Macapagal-Arroyo as the de jure
14th President of the Republic are DISMISSED.
SO ORDERED.

PALISOC & SARMIENTO

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THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY and

BAYANI FERNANDO as Chairman of the Metropolitan Manila
Development
Authority,
Petitioners,
versus
VIRON
TRANSPORTATION CO., INC., Respondent.
G.R. No. 170656 | 2007-08-15
DECISION
CARPIO MORALES, J.:
The following conditions in 1969, as observed by this Court:
Vehicles have increased in number. Traffic congestion has moved
from bad to worse, from tolerable to critical. The number of people
who use the thoroughfares has multiplied x x x,[1]
have remained unchecked and have reverberated to this day. Traffic
jams continue to clog the streets of Metro Manila, bringing vehicles
to a standstill at main road arteries during rush hour traffic and
sapping people's energies and patience in the process.
The present petition for review on certiorari, rooted in the traffic
congestion problem, questions the authority of the Metropolitan
Manila Development Authority (MMDA) to order the closure of
provincial bus terminals along Epifanio de los Santos Avenue
(EDSA) and major thoroughfares of Metro Manila.
Specifically challenged are two Orders issued by Judge Silvino T.
Pampilo, Jr. of the Regional Trial Court (RTC) of Manila, Branch 26 in
Civil Case Nos. 03-105850 and 03-106224.
The first assailed Order of September 8, 2005,[2] which resolved a
motion for reconsideration filed by herein respondents, declared
Executive Order (E.O.) No. 179, hereafter referred to as the E.O.,
"unconstitutional as it constitutes an unreasonable exercise of
police power." The second assailed Order of November 23, 2005[3]
denied petitioners' motion for reconsideration.
The following facts are not disputed:
President Gloria Macapagal Arroyo issued the E.O. on February 10,
2003, "Providing for the Establishment of Greater Manila Mass
Transport System," the pertinent portions of which read:

PALISOC & SARMIENTO

WHEREAS, Metro Manila continues to be the center of employment

opportunities, trade and commerce of the Greater Metro Manila
area;
WHEREAS, the traffic situation in Metro Manila has affected the
adjacent provinces of Bulacan, Cavite, Laguna, and Rizal, owing to
the continued movement of residents and industries to more
affordable and economically viable locations in these provinces;
WHEREAS, the Metropolitan Manila Development Authority
(MMDA) is tasked to undertake measures to ease traffic congestion
in Metro Manila and ensure the convenient and efficient travel of
commuters within its jurisdiction;
WHEREAS, a primary cause of traffic congestion in Metro Manila
has been the numerous buses plying the streets that impedes [sic]
the flow of vehicles and commuters due to the inefficient
connectivity of the different transport modes;
WHEREAS, the MMDA has recommended a plan to decongest
traffic by eliminating the bus terminals now located along major
Metro Manila thoroughfares and providing more convenient access
to the mass transport system to the commuting public through the
provision of mass transport terminal facilities that would integrate
the existing transport modes, namely the buses, the rail-based
systems of the LRT, MRT and PNR and to facilitate and ensure
efficient travel through the improved connectivity of the different
transport modes;
WHEREAS, the national government must provide the necessary
funding requirements to immediately implement and render
operational these projects; and extent to MMDA such other
assistance as may be warranted to ensure their expeditious
prosecution.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President
of the Philippines, by virtue of the powers vested in me by law, do
hereby order:
Section 1. THE PROJECT. - The project shall be identified as
GREATER MANILA TRANSPORT SYSTEM Project.
Section 2. PROJECT OBJECTIVES. - In accordance with the plan
proposed by MMDA, the project aims to develop four (4) interim
intermodal mass transport terminals to integrate the different
transport modes, as well as those that shall hereafter be
developed, to serve the commuting public in the northwest, north,

100 | P a g e

east, south, and southwest of Metro Manila. Initially, the project

shall concentrate on immediately establishing the mass transport
terminals for the north and south Metro Manila commuters as
hereinafter described.
Section
3. PROJECT
IMPLEMENTING
AGENCY.
The Metropolitan Manila Development Authority (MMDA), is
hereby designated as the implementing Agency for the project. For
this purpose, MMDA is directed to undertake such infrastructure
development work as may be necessary and, thereafter, manage
the project until it may be turned-over to more appropriate
agencies, if found suitable and convenient. Specifically, MMDA shall
have the following functions and responsibilities:
a) Cause the preparation of the Master Plan for the projects,
including the designs and costing;
b) Coordinate the use of the land and/or properties needed for the
project with the respective agencies and/or entities owning them;
c) Supervise and manage the construction of the necessary
structures and facilities;
d) Execute such contracts or agreements as may be necessary,
with the appropriate government agencies, entities, and/or private
persons, in accordance with existing laws and pertinent regulations,
to facilitate the implementation of the project;
e) Accept, manage and disburse such funds as may be necessary
for the construction and/or implementation of the projects, in
accordance with prevailing accounting and audit polices and
practice in government.
f) Enlist the assistance of any national government agency, office
or department, including local government units, governmentowned or controlled corporations, as may be necessary;
g) Assign or hire the necessary personnel for the above purposes;
and
h) Perform such other related functions as may be necessary to
enable it to accomplish the objectives and purposes of this
Executive Order.[4] (Emphasis in the original; underscoring
supplied)
As the above-quoted portions of the E.O. noted, the primary cause
of traffic congestion in Metro Manila has been the numerous buses

PALISOC & SARMIENTO

plying the streets and the inefficient connectivity of the different

transport modes;[5] and the MMDA had "recommended a plan to
decongest traffic by eliminating the bus terminals now located
along major Metro Manila thoroughfares and providing more and
convenient access to the mass transport system to the commuting
public through the provision of mass transport terminal facilities"[6]
which plan is referred to under the E.O. as the Greater Manila Mass
Transport System Project (the Project).
The E.O. thus designated the MMDA as the implementing agency
for the Project.
Pursuant to the E.O., the Metro Manila Council (MMC), the
governing board and policymaking body of the MMDA, issued
Resolution No. 03-07 series of 2003[7] expressing full support of
the Project. Recognizing the imperative to integrate the different
transport modes via the establishment of common bus parking
terminal areas, the MMC cited the need to remove the bus
terminals located along major thoroughfares of Metro Manila.[8]
On February 24, 2003, Viron Transport Co., Inc. (Viron), a domestic
corporation engaged in the business of public transportation with a
provincial bus operation,[9] filed a petition for declaratory relief[10]
before the RTC[11] of Manila.
In its petition which was docketed as Civil Case No. 03-105850,
Viron alleged that the MMDA, through Chairman Fernando, was
"poised to issue a Circular, Memorandum or Order closing, or
tantamount to closing, all provincial bus terminals along EDSA and
in the whole of the Metropolis under the pretext of traffic
regulation."[12] This impending move, it stressed, would mean the
closure of its bus terminal in Sampaloc, Manila and two others in
Quezon City.
Alleging that the MMDA's authority does not include the power to
direct provincial bus operators to abandon their existing bus
terminals to thus deprive them of the use of their property, Viron
asked the court to construe the scope, extent and limitation of the
power of the MMDA to regulate traffic under R.A. No. 7924, "An Act
Creating the Metropolitan Manila Development Authority, Defining
its Powers and Functions, Providing Funds Therefor and For Other
Purposes."
Viron also asked for a ruling on whether the planned closure of
provincial bus terminals would contravene the Public Service Act
and related laws which mandate public utilities to provide and

101 | P a g e

maintain their own terminals as a requisite for the privilege of

operating as common carriers.[13]
Mencorp Transportation System, Inc. (Mencorp), another provincial
bus operator, later filed a similar petition for declaratory relief[14]
against Executive Secretary Alberto G. Romulo and MMDA
Chairman Fernando.
Mencorp asked the court to declare the E.O. unconstitutional and
illegal for transgressing the possessory rights of owners and
operators of public land transportation units over their respective
terminals.
Averring that MMDA Chairman Fernando had begun to implement a
plan to close and eliminate all provincial bus terminals along EDSA
and in the whole of the metropolis and to transfer their operations
to common bus terminals,[15] Mencorp prayed for the issuance of a
temporary restraining order (TRO) and/or writ of preliminary
injunction to restrain the impending closure of its bus terminals
which it was leasing at the corner of EDSA and New York Street in
Cubao and at the intersection of Blumentritt, Laon Laan and Halcon
Streets in Quezon City. The petition was docketed as Civil Case No.
03-106224 and was raffled to Branch 47 of the RTC of Manila.
Mencorp's petition was consolidated on June 19, 2003 with Viron's
petition which was raffled to Branch 26 of the RTC, Manila.
Mencorp's prayer for a TRO and/or writ of injunction was denied as
was its application for the issuance of a preliminary injunction.[16]
In the Pre-Trial Order[17] issued by the trial court, the issues were
narrowed down to whether 1) the MMDA's power to regulate traffic
in Metro Manila included the power to direct provincial bus
operators to abandon and close their duly established and existing
bus terminals in order to conduct business in a common terminal;
(2) the E.O. is consistent with the Public Service Act and the
Constitution; and (3) provincial bus operators would be deprived of
their real properties without due process of law should they be
required to use the common bus terminals.
Upon the agreement of the parties, they filed their respective
position papers in lieu of hearings.
By Decision[18] of January 24, 2005, the trial court sustained the
constitutionality and legality of the E.O. pursuant to R.A. No. 7924,
which empowered the MMDA to administer Metro Manila's basic
services including those of transport and traffic management.

PALISOC & SARMIENTO

The trial court held that the E.O. was a valid exercise of the police
power of the State as it satisfied the two tests of lawful subject
matter and lawful means, hence, Viron's and Mencorp's property
rights must yield to police power.
On the separate motions for reconsideration of Viron and Mencorp,
the trial court, by Order of September 8, 2005, reversed its
Decision, this time holding that the E.O. was "an unreasonable
exercise of police power"; that the authority of the MMDA under
Section (5)(e) of R.A. No. 7924 does not include the power to order
the closure of Viron's and Mencorp's existing bus terminals; and
that the E.O. is inconsistent with the provisions of the Public Service
Act.
Petitioners' motion for reconsideration was denied by Resolution of
November 23, 2005.
Hence, this petition, which faults the trial court for failing to rule
that: (1) the requisites of declaratory relief are not present, there
being no justiciable controversy in Civil Case Nos. 03-105850 and
03-106224; and (2) the President has the authority to undertake or
cause the implementation of the Project.[19]
Petitioners contend that there is no justiciable controversy in the
cases for declaratory relief as nothing in the body of the E.O.
mentions or orders the closure and elimination of bus terminals
along the major thoroughfares of Metro Manila. Viron and Mencorp,
they argue, failed to produce any letter or communication from the
Executive Department apprising them of an immediate plan to
close down their bus terminals.
And petitioners maintain that the E.O. is only an administrative
directive to government agencies to coordinate with the MMDA and
to make available for use government property along EDSA and
South Expressway corridors. They add that the only relation created
by the E.O. is that between the Chief Executive and the
implementing officials, but not between third persons.
The petition fails.
It is true, as respondents have pointed out, that the alleged
deficiency of the consolidated petitions to meet the requirement of
justiciability was not among the issues defined for resolution in the
Pre-Trial Order of January 12, 2004. It is equally true, however, that
the question was repeatedly raised by petitioners in their Answer to
Viron's petition,[20] their Comment of April 29, 2003 opposing

102 | P a g e

Mencorp's prayer for the issuance of a TRO,[21] and their Position

Paper of August 23, 2004.[22]
In bringing their petitions before the trial court, both respondents
pleaded the existence of the essential requisites for their respective
petitions for declaratory relief,[23] and refuted petitioners'
contention that a justiciable controversy was lacking.[24] There can
be no denying, therefore, that the issue was raised and discussed
by the parties before the trial court.
The following are the essential requisites for a declaratory relief
petition: (a) there must be a justiciable controversy; (b) the
controversy must be between persons whose interests are adverse;
(c) the party seeking declaratory relief must have a legal interest in
the controversy; and (d) the issue invoked must be ripe for judicial
determination.[25]
The requirement of the presence of a justiciable controversy is
satisfied when an actual controversy or the ripening seeds thereof
exist between the parties, all of whom are sui juris and before the
court, and the declaration sought will help in ending the
controversy.[26] A question becomes justiciable when it is
translated into a claim of right which is actually contested.[27]
In the present cases, respondents' resort to court was prompted by
the issuance of the E.O. The 4th Whereas clause of the E.O. sets out
in clear strokes the MMDA's plan to "decongest traffic by
eliminating the bus terminals now located along major Metro Manila
thoroughfares and providing more convenient access to the mass
transport system to the commuting public through the provision of
mass transport terminal facilities x x x." (Emphasis supplied)
Section 2 of the E.O. thereafter lays down the immediate
establishment of common bus terminals for north- and south-bound
commuters. For this purpose, Section 8 directs the Department of
Budget and Management to allocate funds of not more than one
hundred million pesos (P100,000,000) to cover the cost of the
construction of the north and south terminals. And the E.O. was
made effective immediately.
The MMDA's resolve to immediately implement the Project, its
denials to the contrary notwithstanding, is also evident from telltale
circumstances, foremost of which was the passage by the MMC of
Resolution No. 03-07, Series of 2003 expressing its full support of
the immediate implementation of the Project.

Notable from the 5th Whereas clause of the MMC Resolution is the
plan to "remove the bus terminals located along major
thoroughfares of Metro Manila and an urgent need to integrate the
different transport modes." The 7th Whereas clause proceeds to
mention the establishment of the North and South terminals.
As alleged in Viron's petition, a diagram of the GMA-MTS North
Bus/Rail Terminal had been drawn up, and construction of the
terminal is already in progress. The MMDA, in its Answer[28] and
Position Paper,[29] in fact affirmed that the government had begun
to implement the Project.
It thus appears that the issue has already transcended the
boundaries of what is merely conjectural or anticipatory.
Under the circumstances, for respondents to wait for the actual
issuance by the MMDA of an order for the closure of respondents'
bus terminals would be foolhardy for, by then, the proper action to
bring would no longer be for declaratory relief which, under Section
1, Rule 63[30] of the Rules of Court, must be brought before there
is a breach or violation of rights.
As for petitioners' contention that the E.O. is a mere administrative
issuance which creates no relation with third persons, it does not
persuade. Suffice it to stress that to ensure the success of the
Project for which the concerned government agencies are directed
to coordinate their activities and resources, the existing bus
terminals owned, operated or leased by third persons like
respondents would have to be eliminated; and respondents would
be forced to operate from the common bus terminals.
It cannot be gainsaid that the E.O. would have an adverse effect on
respondents. The closure of their bus terminals would mean,
among other things, the loss of income from the operation and/or
rentals of stalls thereat. Precisely, respondents claim a deprivation
of their constitutional right to property without due process of law.
Respondents have thus amply demonstrated a "personal and
substantial interest in the case such that [they have] sustained, or
will sustain, direct injury as a result of [the E.O.'s]
enforcement."[31] Consequently, the established rule that the
constitutionality of a law or administrative issuance can be
challenged by one who will sustain a direct injury as a result of its
enforcement has been satisfied by respondents.
On to the merits of the case.

PALISOC & SARMIENTO

103 | P a g e

Respondents posit that the MMDA is devoid

the elimination of their bus terminals under
argue, is unconstitutional because it violates
and the Public Service Act; and that neither
with such authority under R.A. No. 7924.

of authority to order
the E.O. which, they
both the Constitution
is the MMDA clothed

Petitioners submit, however, that the real issue concerns the

President's authority to undertake or to cause the implementation
of the Project. They assert that the authority of the President is
derived from E.O. No. 125, "Reorganizing the Ministry of
Transportation and Communications Defining its Powers and
Functions and for Other Purposes," her residual power and/or E.O.
No. 292, otherwise known as the Administrative Code of 1987. They
add that the E.O. is also a valid exercise of the police power.
E.O. No. 125,[32] which former President Corazon Aquino issued in
the exercise of legislative powers, reorganized the then Ministry
(now Department) of Transportation and Communications. Sections
4, 5, 6 and 22 of E.O. 125, as amended by E.O. 125-A,[33] read:
SECTION 4. Mandate. The Ministry shall be the primary policy,
planning,
programming,
coordinating,
implementing,
regulating and administrative entity of the Executive
Branch of the government in the promotion, development
and regulation of dependable and coordinated networks of
transportation and communication systems as well as in the fast,
safe,
efficient
and
reliable
postal,
transportation
and
communications services.
To accomplish such mandate, the Ministry shall have the following
objectives:
(a) Promote the development of dependable and coordinated
networks of transportation and communications systems;
(b) Guide government
and
private
investment
in
the development of the countrys intermodal transportation
and communications systems in a most practical, expeditious,
and orderly fashion for maximum safety, service, and cost
effectiveness; (Emphasis and underscoring supplied)
xxxx
SECTION 5. Powers and Functions. To accomplish its mandate,
the Ministry shall have the following powers and functions:
(a) Formulate and recommend national policies and guidelines for
the preparation and implementation of integrated and
comprehensive transportation and communications systems at the
national, regional and local levels;

PALISOC & SARMIENTO

(b) Establish and administer comprehensive and integrated

programs for transportation and communications, and for
this purpose, may call on any agency, corporation, or organization,
whether public or private, whose development programs include
transportation and communications as an integral part thereof, to
participate and assist in the preparation and implementation of
such program;
(c) Assess, review and provide direction to transportation and
communications research and development programs of the
government in coordination with other institutions concerned;
(d) Administer all laws, rules and regulations in the field of
transportation
and
communications; (Emphasis
and
underscoring supplied)
xxxx
SECTION 6. Authority and Responsibility. The authority and
responsibility for the exercise of the mandate of the
Ministry and for the discharge of its powers and functions
shall be vested in the Minister of Transportation and
Communications, hereinafter referred to as the Minister, who
shall have supervision and control over the Ministry and shall be
appointed by the President. (Emphasis and underscoring supplied)
SECTION 22. Implementing Authority of Minister. The Minister
shall issue such orders, rules, regulations and other
issuances as may be necessary to ensure the effective
implementation of the provisions of this Executive Order.
(Emphasis and underscoring supplied)
It is readily apparent from the abovequoted provisions of E.O. No.
125, as amended, that the President, then possessed of and
exercising legislative powers, mandated the DOTC to be the
primary policy,
planning,
programming,
coordinating,
implementing, regulating and administrative entity to promote,
develop
and
regulate
networks
of
transportation
and
communications. The grant of authority to the DOTC includes the
power toestablish and administer comprehensive and integrated
programs for transportation and communications.
As may be seen further, the Minister (now Secretary) of the DOTC is
vested with the authority and responsibility to exercise the
mandate given to the department. Accordingly, the DOTC Secretary
is authorized to issue such orders, rules, regulations and other
issuances as may be necessary to ensure the effective
implementation of the law.
Since, under the law, the DOTC is authorized to establish and
administer programs and projects for transportation, it follows that

104 | P a g e

the President may exercise the same power and authority to order
the implementation of the Project, which admittedly is one for
transportation.
Such authority springs from the President's power of control over all
executive departments as well as the obligation for the faithful
execution of the laws under Article VII, Section 17 of the
Constitution which provides:
SECTION 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
This constitutional provision is echoed in Section 1, Book III of the
Administrative Code of 1987. Notably, Section 38, Chapter 37, Book
IV of the same Code defines the President's power of supervision
and control over the executive departments, viz:
SECTION 38. Definition of Administrative Relationships. - Unless
otherwise expressly stated in the Code or in other laws defining the
special relationships of particular agencies, administrative
relationships shall be categorized and defined as follows:
(1) Supervision and Control. - Supervision and control shall
include authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate;
direct the performance of duty; restrain the commission of acts;
review, approve, reverse or modify acts and decisions of
subordinate officials or units; determine priorities in the execution
of plans and programs. Unless a different meaning is explicitly
provided in the specific law governing the relationship of particular
agencies the word "control" shall encompass supervision and
control as defined in this paragraph. x x x (Emphasis and
underscoring supplied)
Thus, whenever a specific function is entrusted by law or regulation
to a subordinate, the President may act directly or merely direct the
performance of a duty.[34]
Respecting the President's authority to order the implementation of
the Project in the exercise of the police power of the State, suffice it
to stress that the powers vested in the DOTC Secretary to establish
and administer comprehensive and integrated programs for
transportation and communications and to issue orders, rules and
regulations to implement such mandate (which, as previously
discussed, may also be exercised by the President) have been so

PALISOC & SARMIENTO

delegated for the good and welfare of the people. Hence, these
powers partake of the nature of police power.
Police power is the plenary power vested in the legislature to make,
ordain, and establish wholesome and reasonable laws, statutes and
ordinances, not repugnant to the Constitution, for the good and
welfare of the people.[35] This power to prescribe regulations to
promote the health, morals, education, good order or safety, and
general welfare of the people flows from the recognition that salus
populi est suprema lex - the welfare of the people is the supreme
law.
While police power rests primarily with the legislature, such power
may be delegated, as it is in fact increasingly being delegated.[36]
By virtue of a valid delegation, the power may be exercised by the
President and administrative boards[37] as well as by the
lawmaking bodies of municipal corporations or local governments
under an express delegation by the Local Government Code of
1991.[38]
The authority of the President to order the implementation of the
Project notwithstanding, the designation of the MMDA as the
implementing agency for the Project may not be sustained. It is
ultra vires, there being no legal basis therefor.
It bears stressing that under the provisions of E.O. No. 125, as
amended, it is the DOTC, and not the MMDA, which is authorized to
establish and implement a project such as the one subject of the
cases at bar. Thus, the President, although authorized to establish
or cause the implementation of the Project, must exercise the
authority through the instrumentality of the DOTC which, by law,
is the primary implementing and administrative entity in the
promotion, development and regulation of networks of
transportation, and the one so authorized to establish and
implement a project such as the Project in question.
By designating the MMDA as the implementing agency of the
Project, the President clearly overstepped the limits of the authority
conferred by law, rendering E.O. No. 179 ultra vires.
In another vein, the validity of the designation of MMDA flies in the
absence of a specific grant of authority to it under R.A. No. 7924.
To recall, R.A. No. 7924 declared the Metropolitan Manila area[39]
as a "special development and administrative region" and placed
the administration of "metro-wide" basic services affecting the
region under the MMDA.

105 | P a g e

Section 2 of R.A. No. 7924 specifically authorizes the MMDA to

perform "planning, monitoring and coordinative functions, and in
the process exercise regulatory and supervisory authority over the
delivery of metro-wide services," including transport and traffic
management.[40] Section 5 of the same law enumerates the
powers and functions of the MMDA as follows:
(a) Formulate, coordinate and regulate the implementation of
medium and long-term plans and programs for the delivery of
metro-wide services, land use and physical development within
Metropolitan Manila, consistent with national development
objectives and priorities;
(b) Prepare, coordinate and regulate the implementation of
medium-term investment programs for metro-wide services which
shall indicate sources and uses of funds for priority programs and
projects, and which shall include the packaging of projects and
presentation to funding institutions;
(c) Undertake and manage on its own metro-wide programs and
projects for the delivery of specific services under its jurisdiction,
subject to the approval of the Council. For this purpose, MMDA can
create appropriate project management offices;
(d) Coordinate and monitor the implementation of such plans,
programs and projects in Metro Manila; identify bottlenecks and
adopt solutions to problems of implementation;
(e) The MMDA shall set the policies concerning traffic in
Metro Manila, and shall coordinate and regulate the
implementation of all programs and projects concerning
traffic management, specifically pertaining to enforcement,
engineering and education. Upon request, it shall be extended
assistance and cooperation, including but not limited to,
assignment of personnel, by all other government agencies and
offices concerned;
(f) Install and administer a single ticketing system, fix,
impose and collect fines and penalties for all kinds of
violations of traffic rules and regulations, whether moving or
non-moving in nature, and confiscate and suspend or revoke
drivers' licenses in the enforcement of such traffic laws and
regulations, the provisions of RA 4136 and PD 1605 to the contrary
notwithstanding. For this purpose, the Authority shall impose all
traffic laws and regulations in Metro Manila, through its traffic
operation center, and may deputize members of the PNP, traffic

PALISOC & SARMIENTO

enforcers of local government units, duly licensed security guards,

or members of non-governmental organizations to whom may be
delegated certain authority, subject to such conditions and
requirements as the Authority may impose; and
(g) Perform other related functions required to achieve the
objectives of the MMDA, including the undertaking of delivery of
basic services to the local government units, when deemed
necessary subject to prior coordination with and consent of the
local government unit concerned." (Emphasis and underscoring
supplied)
The scope of the function of MMDA as an administrative,
coordinating
and
policy-setting
body
has
been
settled
inMetropolitan Manila Development Authority (MMDA) v. Bel-Air
Village Association, Inc.[41] In that case, the Court stressed:
Clearly, the scope of the MMDAs function is limited to the delivery
of the seven (7) basic services. One of these is transport and
traffic management which includes the formulation and
monitoring of policies, standards and projects to rationalize the
existing transport operations, infrastructure requirements, the use
of thoroughfares and promotion of the safe movement of persons
and goods. It also covers the mass transport system and the
institution of a system of road regulation, the administration of all
traffic enforcement operations, traffic engineering services and
traffic education programs, including the institution of a single
ticketing system in Metro Manila for traffic violations. Under this
service, the MMDA is expressly authorized to to set the policies
concerning
traffic
and
coordinate
and
regulate
the
implementation of all traffic management programs. In addition,
the MMDA may install and administer a single ticketing system,
fix, impose and collect fines and penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the
following
acts:
formulation,
coordination,
regulation,
implementation, preparation, management, monitoring, setting of
policies, installation of a system and administration. There is no
syllable in R.A. No. 7924 that grants the MMDA police power, let
alone legislative power. Even the Metro Manila Council has not
been delegated any legislative power. Unlike the legislative
bodies of the local government units, there is no provision
in R.A. No. 7924 that empowers the MMDA or its Council to
enact ordinances, approve resolutions and appropriate
funds for the general welfare of the inhabitants of Metro
Manila. The MMDA is, as termed in the charter itself, a
development authority. It is an agency created for the

106 | P a g e

purpose of laying down policiesand coordinating with the

various
national
government
agencies,
peoples
organizations, non-governmental organizations and the
private sector for the efficient and expeditious delivery of
basic services in the vast metropolitan area. All its
functions are administrative in nature and these are
actually summed up in the charter itself, viz:

Likewise, in Luque v. Villegas,[46] this Court emphasized that public

welfare lies at the bottom of any regulatory measure designed "to
relieve congestion of traffic, which is, to say the least, a menace to
public safety."[47] As such, measures calculated to promote the
safety and convenience of the people using the thoroughfares by
the regulation of vehicular traffic present a proper subject for the
exercise of police power.

'SECTION 2. Creation of the Metropolitan Manila Development

Authority. - . . .

Notably, the parties herein concede that traffic congestion is a

public concern that needs to be addressed immediately. Indeed, the
E.O. was issued due to the felt need to address the worsening
traffic congestion in Metro Manila which, the MMDA so determined,
is caused by the increasing volume of buses plying the major
thoroughfares and the inefficient connectivity of existing transport
systems. It is thus beyond cavil that the motivating force behind
the issuance of the E.O. is the interest of the public in general.

The MMDA shall perform planning, monitoring and

coordinative functions, and in the processexercise
regulatory and supervisory authority over the delivery of
metro-wide services within Metro Manila, without diminution
of the autonomy of the local government units concerning purely
local matters.'[42] (Emphasis and underscoring supplied)
In light of the administrative nature of its powers and functions, the
MMDA is devoid of authority to implement the Project as envisioned
by the E.O; hence, it could not have been validly designated by the
President to undertake the Project. It follows that the MMDA cannot
validly order the elimination of respondents' terminals.
Even the MMDA's claimed authority under the police power must
necessarily fail in consonance with the above-quoted ruling
in MMDA v. Bel-Air Village Association, Inc. and this Court's
subsequent ruling in Metropolitan Manila Development Authority v.
Garin[43] that the MMDA is not vested with police power.
Even assuming arguendo that police power was delegated to the
MMDA, its exercise of such power does not satisfy the two tests of a
valid police power measure, viz: (1) the interest of the public
generally, as distinguished from that of a particular class, requires
its exercise; and (2) the means employed are reasonably necessary
for the accomplishment of the purpose and not unduly oppressive
upon individuals.[44] Stated differently, the police power legislation
must be firmly grounded on public interest and welfare and a
reasonable relation must exist between the purposes and the
means.
As early as Calalang v. Williams,[45] this Court recognized that
traffic congestion is a public, not merely a private, concern. The
Court therein held that public welfare underlies the contested
statute authorizing the Director of Public Works to promulgate rules
and regulations to regulate and control traffic on national roads.

PALISOC & SARMIENTO

Are the means employed appropriate and reasonably necessary for

the accomplishment of the purpose. Are they not duly oppressive?
With the avowed objective of decongesting traffic in Metro Manila,
the E.O. seeks to "eliminate[e] the bus terminals now located along
major Metro Manila thoroughfares and provid[e] more convenient
access to the mass transport system to the commuting public
through the provision of mass transport terminal facilities x x
x."[48] Common carriers with terminals along the major
thoroughfares of Metro Manila would thus be compelled to close
down their existing bus terminals and use the MMDA-designated
common parking areas.
In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.,[49] two city
ordinances were passed by the Sangguniang Panlungsod of Lucena,
directing public utility vehicles to unload and load passengers at
the Lucena Grand Central Terminal, which was given the exclusive
franchise to operate a single common terminal. Declaring that no
other terminals shall be situated, constructed, maintained or
established inside or within the city of Lucena, the sanggunian
declared as inoperable all temporary terminals therein.
The ordinances were challenged before this Court for being
unconstitutional on the ground that, inter alia, the measures
constituted an invalid exercise of police power, an undue taking of
private property, and a violation of the constitutional prohibition
against monopolies.
Citing De la Cruz v. Paras[50] and Lupangco v. Court of Appeals,
[51] this Court held that the assailed ordinances were characterized

107 | P a g e

by overbreadth, as they went beyond what was reasonably

necessary to solve the traffic problem in the city. And it found that
the compulsory use of the Lucena Grand Terminal was unduly
oppressive because it would subject its users to fees, rentals and
charges.
The true role of Constitutional Law is to effect an equilibrium
between authority and liberty so that rights are exercised within
the framework of the law and the laws are enacted with due
deference to rights.
A due deference to the rights of the individual thus requires a more
careful formulation of solutions to societal problems.
From the memorandum filed before this Court by petitioner, it is
gathered that the Sangguniang Panlungsod had identified the
cause of traffic congestion to be the indiscriminate loading and
unloading of passengers by buses on the streets of the city proper,
hence, the conclusion that the terminals contributed to the
proliferation of buses obstructing traffic on the city streets.
Bus terminals per se do not, however, impede or help impede the
flow of traffic. How the outright proscription against the
existence of all terminals, apart from that franchised to
petitioner, can be considered as reasonably necessary to
solve the traffic problem, this Court has not been
enlightened. If terminals lack adequate space such that bus
drivers are compelled to load and unload passengers on the streets
instead of inside the terminals, then reasonable specifications for
the size of terminals could be instituted, with permits to operate
the same denied those which are unable to meet the specifications.
In the subject ordinances, however, the scope of the
proscription against the maintenance of terminals is so
broad that even entities which might be able to provide
facilities better than the franchised terminal are barred
from operating at all. (Emphasis and underscoring supplied)
As in Lucena, this Court fails to see how the prohibition against the
existence of respondents' terminals can be considered a reasonable
necessity to ease traffic congestion in the metropolis. On the
contrary, the elimination of respondents' bus terminals brings forth
the distinct possibility and the equally harrowing reality of traffic
congestion in the common parking areas, a case of transference
from one site to another.

PALISOC & SARMIENTO

Less intrusive measures such as curbing the proliferation of

"colorum" buses, vans and taxis entering Metro Manila and using
the streets for parking and passenger pick-up points, as
respondents suggest, might even be more effective in easing the
traffic situation. So would the strict enforcement of traffic rules and
the removal of obstructions from major thoroughfares.
As to the alleged confiscatory character of the E.O., it need only to
be stated that respondents' certificates of public convenience
confer no property right, and are mere licenses or privileges.[52] As
such, these must yield to legislation safeguarding the interest of
the people.
Even then, for reasons which bear reiteration, the MMDA cannot
order the closure of respondents' terminals not only because no
authority to implement the Project has been granted nor legislative
or police power been delegated to it, but also because the
elimination of the terminals does not satisfy the standards of a
valid police power measure.
Finally, an order for the closure of respondents' terminals is not in
line with the provisions of the Public Service Act.
Paragraph (a), Section 13 of Chapter II of the Public Service Act
(now Section 5 of Executive Order No. 202, creating the Land
Transportation Franchising and Regulatory Board or LFTRB) vested
the Public Service Commission (PSC, now the LTFRB) with "x x x
jurisdiction, supervision and control over all public services and
their franchises, equipment and other properties x x x."
Consonant with such grant of authority, the PSC was empowered
to "impose such conditions as to construction, equipment,
maintenance, service, or operation as the public interests and
convenience may reasonably require"[53] in approving any
franchise or privilege.
Further, Section 16 (g) and (h) of the Public Service Act[54]
provided that the Commission shall have the power, upon proper
notice and hearing in accordance with the rules and provisions of
this Act, subject to the limitations and exceptions mentioned and
saving provisions to the contrary:
(g) To compel any public service to furnish safe, adequate, and
proper service as regards the manner of furnishing the same as
well as the maintenance of the necessary material and equipment.

108 | P a g e

(h) To require any public service to establish, construct,

maintain, and operate any reasonable extension of its
existing facilities, where in the judgment of said Commission,
such extension is reasonable and practicable and will furnish
sufficient business to justify the construction and maintenance of
the same and when the financial condition of the said public service
reasonably warrants the original expenditure required in making
and operating such extension.(Emphasis and underscoring
supplied)
The establishment, as well as the maintenance of vehicle parking
areas or passenger terminals, is generally considered a necessary
service to be provided by provincial bus operators like respondents,
hence, the investments they have poured into the acquisition or
lease of suitable terminal sites. Eliminating the terminals would
thus run counter to the provisions of the Public Service Act.
This Court commiserates with the MMDA for the roadblocks thrown
in the way of its efforts at solving the pestering problem of traffic
congestion in Metro Manila. These efforts are commendable, to say
the least, in the face of the abominable traffic situation of our roads
day in and day out. This Court can only interpret, not change, the
law, however. It needs only to be reiterated that it is the DOTC as the primary policy, planning, programming, coordinating,
implementing, regulating and administrative entity to promote,
develop
and
regulate
networks
of
transportation
and
communications - which has the power to establish and
administer a transportation project like the Project subject
of the case at bar.
No matter how noble the intentions of the MMDA may be then, any
plan, strategy or project which it is not authorized to implement
cannot pass muster.
WHEREFORE, the Petition is, in light of the foregoing
disquisition, DENIED. E.O. No. 179 is declared NULL and VOID
for being ultra vires.
SO ORDERED.

PALISOC & SARMIENTO

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Hon. Ma. Lourdes C. Fernando, in her capacity as City Mayor

of Marikina City, Josephine C. Evangelista, in her capacity as
Chief, Permit Division, Office fo the City Engineer, and
Alfonso Espiritu, in his capacity as City Engineer fo Marikina
City, Petitioners Vs. St. Scholastica's College and St.
Scholastica's Academy-Marikina, Inc., Respondents.
G.R. No. 161107 | March 12, 2013
ENBANC
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45
of the Rules of Court, which seeks to set aside the December 1,
2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
75691.
The Facts
Respondents St. Scholasticas College (SSC) and St. Scholasticas
Academy-Marikina, Inc. (SSA-Marikina) are educational institutions
organized under the laws of the Republic of the Philippines, with
principal offices and business addresses at Leon Guinto Street,
Malate, Manila, and at West Drive, Marikina Heights, Marikina City,
respectively.2
Respondent SSC is the owner of four (4) parcels of land measuring
a total of 56,306.80 square meters, located in Marikina Heights and
covered by Transfer Certificate Title (TCT) No. 91537. Located
within the property are SSA-Marikina, the residence of the sisters of
the Benedictine Order, the formation house of the novices, and the
retirement house for the elderly sisters. The property is enclosed by
a tall concrete perimeter fence built some thirty (30) years ago.
Abutting the fence along the West Drive are buildings, facilities,
and other improvements.3
The petitioners are the officials of the City Government of Marikina.
On September 30, 1994, the Sangguniang Panlungsod of Marikina
City enacted Ordinance No. 192,4 entitled Regulating the
Construction of Fences and Walls in the Municipality of Marikina. In
1995 and 1998, Ordinance Nos. 2175 and 2006 were enacted to
amend Sections 7 and 5, respectively. Ordinance No. 192, as
amended, is reproduced hereunder, as follows:
ORDINANCE No. 192

PALISOC & SARMIENTO

Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND
WALLS IN THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise
known as the Local Government Code of 1991 empowers the
Sangguniang Bayan as the local legislative body of the municipality
to x x x Prescribe reasonable limits and restraints on the use of
property within the jurisdiction of the municipality, x x x;
WHEREAS the effort of the municipality to accelerate its economic
and physical development, coupled with urbanization and
modernization, makes imperative the adoption of an ordinance
which shall embody up-to-date and modern technical design in the
construction of fences of residential, commercial and industrial
buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the
National Building Code of the Philippines, does not adequately
provide technical guidelines for the construction of fences, in terms
of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide
more efficient and effective enforcement of laws on public safety
and security;
WHEREAS, it has occurred in not just a few occasions that high
fences or walls did not actually discourage but, in fact, even
protected burglars, robbers, and other lawless elements from the
view of outsiders once they have gained ingress into these walls,
hence, fences not necessarily providing security, but becomes itself
a security problem;
WHEREAS, to discourage, suppress or prevent the concealment of
prohibited or unlawful acts earlier enumerated, and as guardian of
the people of Marikina, the municipal government seeks to enact
and implement rules and ordinances to protect and promote the
health, safety and morals of its constituents;
WHEREAS, consistent too, with the Clean and Green Program of
the government, lowering of fences and walls shall encourage
people to plant more trees and ornamental plants in their yards,
and when visible, such trees and ornamental plants are expected to
create an aura of a clean, green and beautiful environment for
Marikeos;

110 | P a g e

WHEREAS, high fences are unsightly that, in the past, people

planted on sidewalks to beautify the faade of their residences
but, however, become hazards and obstructions to pedestrians;

(1) Fences on the front yard shall be no more than one (1) meter
in height. Fences in excess of one (1) meter shall be of an open
fence type, at least eighty percent (80%) see-thru; and

WHEREAS, high and solid walls as fences are considered

unneighborly preventing community members to easily
communicate and socialize and deemed to create boxed-in
mentality among the populace;

(2) Fences on the side and back yard shall be in accordance with
the provisions of P.D. 1096 otherwise known as the National
Building Code.

WHEREAS, to gather as wide-range of opinions and comments on

this proposal, and as a requirement of the Local Government Code
of 1991 (R.A. 7160), the Sangguniang Bayan of Marikina invited
presidents or officers of homeowners associations, and commercial
and industrial establishments in Marikina to two public hearings
held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed ordinance
were fully presented to the attendees and no vehement objection
was presented to the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN
OF MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of
all fences, walls and gates on lots classified or used for residential,
commercial, industrial, or special purposes.
Section 2. Definition of Terms:
a. Front Yard refers to the area of the lot fronting a street, alley or
public thoroughfare.
b. Back Yard the part of the lot at the rear of the structure
constructed therein.
c. Open fence type of fence which allows a view of thru-see of
the inner yard and the improvements therein. (Examples: wrought
iron, wooden lattice, cyclone wire)
d. Front gate refers to the gate which serves as a passage of
persons or vehicles fronting a street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under this
ordinance are as follows:

PALISOC & SARMIENTO

Section 4. No fence of any kind shall be allowed in areas specifically

reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of residential
subdivisions.
(2)When public safety or public welfare requires, the Sangguniang
Bayan may allow the construction and/or maintenance of walls
higher than as prescribed herein and shall issue a special permit or
exemption.
Section 7. Transitory Provision. Real property owners whose existing
fences and walls do not conform to the specifications herein are
allowed adequate period of time from the passage of this
Ordinance within which to conform, as follows:
(1) Residential houses eight (8) years
(2)Commercial establishments five (5) years
(3)Industrial establishments three (3) years
(4)Educational institutions five (5) years8
(public and privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of
this Ordinance shall be demolished by the municipal government at
the expense of the owner of the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly
implement this ordinance, including the issuance of the necessary
implementing guidelines, issuance of building and fencing permits,
and demolition of non-conforming walls at the lapse of the grace
period herein provided.

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Section 10. Repealing Clause. All existing Ordinances and

Resolutions, Rules and Regulations inconsistent with the foregoing
provisions are hereby repealed, amended or modified.

provisions to deter lawless elements and criminality did not exist as

the solid concrete walls of the school had served as sufficient
protection for many years.12

Section 11. Separability Clause. If for any reason or reasons, local

executive orders, rules and regulations or parts thereof in conflict
with this Ordinance are hereby repealed and/or modified
accordingly.

The petitioners, on the other hand, countered that the ordinance

was a valid exercise of police power, by virtue of which, they could
restrain property rights for the protection of public safety, health,
morals, or the promotion of public convenience and general
prosperity.13

Section 12. Effectivity. This ordinance takes effect after publication.

APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to
the respondents ordering them to demolish and replace the fence
of their Marikina property to make it 80% see-thru, and, at the
same time, to move it back about six (6) meters to provide parking
space for vehicles to park.9 On April 26, 2000, the respondents
requested for an extension of time to comply with the directive.10
In response, the petitioners, through then City Mayor Bayani F.
Fernando, insisted on the enforcement of the subject ordinance.
Not in conformity, the respondents filed a petition for prohibition
with an application for a writ of preliminary injunction and
temporary restraining order before the Regional Trial Court,
Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-381MK.11
The respondents argued that the petitioners were acting in excess
of jurisdiction in enforcing Ordinance No. 192, asserting that such
contravenes Section 1, Article III of the 1987 Constitution. That
demolishing their fence and constructing it six (6) meters back
would result in the loss of at least 1,808.34 square meters, worth
about P9,041,700.00, along West Drive, and at least 1,954.02
square meters, worth roughly P9,770,100.00, along East Drive. It
would also result in the destruction of the garbage house, covered
walk, electric house, storage house, comfort rooms, guards room,
guards post, waiting area for visitors, waiting area for students,
Blessed Virgin Shrine, P.E. area, and the multi-purpose hall,
resulting in the permanent loss of their beneficial use. The
respondents, thus, asserted that the implementation of the
ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that the
petitioners could only appropriate a portion of their property
through eminent domain. They also pointed out that the goal of the

PALISOC & SARMIENTO

On June 30, 2000, the RTC issued a writ of preliminary injunction,

enjoining the petitioners from implementing the demolition of the
fence at SSCs Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated October 2,
2002, granting the petition and ordering the issuance of a writ of
prohibition commanding the petitioners to permanently desist from
enforcing or implementing Ordinance No. 192 on the respondents
property.
The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in Marikina
and to move it back six (6) meters would amount to an
appropriation of property which could only be done through the
exercise of eminent domain. It held that the petitioners could not
take the respondents property under the guise of police power to
evade the payment of just compensation.
It did not give weight to the petitioners contention that the parking
space was for the benefit of the students and patrons of SSAMarikina, considering that the respondents were already providing
for sufficient parking in compliance with the standards under Rule
XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run
counter to the respondents right to privacy, considering that the
property also served as a residence of the Benedictine sisters, who
were entitled to some sense of privacy in their affairs. It also found
that the respondents were able to prove that the danger to security
had no basis in their case. Moreover, it held that the purpose of
beautification could not be used to justify the exercise of police
power.
It also observed that Section 7 of Ordinance No. 192, as amended,
provided for retroactive application. It held, however, that such

112 | P a g e

retroactive effect should not impair the respondents vested

substantive rights over the perimeter walls, the six-meter strips of
land along the walls, and the building, structures, facilities, and
improvements, which would be destroyed by the demolition of the
walls and the seizure of the strips of land.
The RTC also found untenable the petitioners argument that
Ordinance No. 192 was a remedial or curative statute intended to
correct the defects of buildings and structures, which were brought
about by the absence or insufficiency of laws. It ruled that the
assailed ordinance was neither remedial nor curative in nature,
considering that at the time the respondents perimeter wall was
built, the same was valid and legal, and the ordinance did not refer
to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to
expropriate the subject property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of prohibition is
hereby issued commanding the respondents to permanently desist
from enforcing or implementing Ordinance No. 192, Series of 1994,
as amended, on petitioners property in question located at
Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners
appeal and affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No.
192 did not justify the exercise of police power, as it did not only
seek to regulate, but also involved the taking of the respondents
property without due process of law. The respondents were bound
to lose an unquantifiable sense of security, the beneficial use of
their structures, and a total of 3,762.36 square meters of property.
It, thus, ruled that the assailed ordinance could not be upheld as
valid as it clearly invaded the personal and property rights of the
respondents and [f]or being unreasonable, and undue restraint of
trade.17

PALISOC & SARMIENTO

It noted that although the petitioners complied with procedural due

process in enacting Ordinance No. 192, they failed to comply with
substantive due process. Hence, the failure of the respondents to
attend the public hearings in order to raise objections did not
amount to a waiver of their right to question the validity of the
ordinance.
The CA also shot down the argument that the five-meter setback
provision for parking was a legal easement, the use and ownership
of which would remain with, and inure to, the benefit of the
respondents for whom the easement was primarily intended. It
found that the real intent of the setback provision was to make the
parking space free for use by the public, considering that such
would cease to be for the exclusive use of the school and its
students as it would be situated outside school premises and
beyond the school administrations control.
In affirming the RTC ruling that the ordinance was not a curative
statute, the CA found that the petitioner failed to point out any
irregularity or invalidity in the provisions of the National Building
Code that required correction or cure. It noted that any correction
in the Code should be properly undertaken by the Congress and not
by the City Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant appeal
is DENIED. The October 2, 2002 Decision and the January 13, 2003
Order of the Regional Trial Court (RTC) of Marikina City, Branch 273,
granting petitioners-appellees petition for Prohibition in SCA Case
No. 2000-381-MK are hereby AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now before
this Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN DECLARING THAT CITY ORDINANCE NO. 192,
SERIES OF 1994 IS NOT A VALID EXERCISE OF POLICE
POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN RULING THAT THE AFOREMENTIONED ORDINANCE

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IS AN EXERCISE OF THE CITY OF THE POWER OF EMINENT

DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN DECLARING THAT THE CITY VIOLATED THE DUE
PROCESS CLAUSE IN IMPLEMENTING ORDINANCE NO. 192,
SERIES OF 1994; AND
4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN RULING THAT THE ABOVE-MENTIONED ORDINANCE
CANNOT BE GIVEN RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the assailed
ordinance, pertaining to the five-meter setback requirement is, as
held by the lower courts, invalid. 20 Nonetheless, the petitioners
argue that such invalidity was subsequently cured by Zoning
Ordinance No. 303, series of 2000. They also contend that Section
3, relating to the 80% see-thru fence requirement, must be
complied with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1 and
5 of Ordinance No. 192 are valid exercises of police power by the
City Government of Marikina.
Police power is the plenary power vested in the legislature to
make statutes and ordinances to promote the health, morals,
peace, education, good order or safety and general welfare of the
people.21 The State, through the legislature, has delegated the
exercise of police power to local government units, as agencies of
the State. This delegation of police power is embodied in Section
1622 of the Local Government Code of 1991 (R.A. No. 7160), known
as the General Welfare Clause,23 which has two branches. The
first, known as the general legislative power, authorizes the
municipal council to enact ordinances and make regulations not
repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal
council by law. The second, known as the police power proper,
authorizes the municipality to enact ordinances as may be
necessary and proper for the health and safety, prosperity, morals,
peace, good order, comfort, and convenience of the municipality
and its inhabitants, and for the protection of their property.24
White Light Corporation v. City of Manila,25 discusses the test of
a valid ordinance:

PALISOC & SARMIENTO

The test of a valid ordinance is well established. A long line of

decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the
local government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be
partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and
(6) must not be unreasonable.26
Ordinance No. 192 was passed by the City Council of Marikina in
the apparent exercise of its police power. To successfully invoke the
exercise of police power as the rationale for the enactment of an
ordinance and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally further
a legitimate governmental interest. Under intermediate review,
governmental interest is extensively examined and the availability
of less restrictive measures is considered. Applying strict scrutiny,
the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means
for achieving that interest.27
Even without going to a discussion of the strict scrutiny test,
Ordinance No. 192, series of 1994 must be struck down for not
being reasonably necessary to accomplish the Citys purpose. More
importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance must pass the
following requisites as discussed in Social Justice Society (SJS) v.
Atienza, Jr.:28
As with the State, local governments may be considered as having
properly exercised their police power only if the following requisites
are met: (1) the interests of the public generally, as distinguished
from those of a particular class, require its exercise and (2) the
means employed are reasonably necessary for the accomplishment
of the purpose and not unduly oppressive upon individuals. In
short, there must be a concurrence of a lawful subject and lawful
method.29

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Lacking a concurrence of these two requisites, the police power

measure shall be struck down as an arbitrary intrusion into private
rights and a violation of the due process clause. 30
Section 3.1 and 5 of the assailed ordinance are pertinent to the
issue at hand, to wit:
Section 3. The standard height of fences of walls allowed under this
ordinance are as follows:
(1) Fences on the front yard shall be no more than one (1) meter
in height. Fences in excess of one (1) meter shall be an open fence
type, at least eighty percent (80%) see-thru;
xxxxxxxxx
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from
requiring them to (1) demolish their existing concrete wall, (2) build
a fence (in excess of one meter) which must be 80% see-thru, and
(3) build the said fence six meters back in order to provide a
parking area.
Setback Requirement

The petitioners cannot justify the setback by arguing that the

ownership of the property will continue to remain with the
respondents. It is a settled rule that neither the acquisition of title
nor the total destruction of value is essential to taking. In fact, it is
usually in cases where the title remains with the private owner that
inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable
taking.32 The Court is of the view that the implementation of the
setback requirement would be tantamount to a taking of a total of
3,762.36 square meters of the respondents private property for
public use without just compensation, in contravention to the
Constitution.
Anent the objectives of prevention of concealment of unlawful acts
and un-neighborliness, it is obvious that providing for a parking
area has no logical connection to, and is not reasonably necessary
for, the accomplishment of these goals.
Regarding the beautification purpose of the setback requirement,
it has long been settled that the State may not, under the guise of
police power, permanently divest owners of the beneficial use of
their property solely to preserve or enhance the aesthetic
appearance of the community.33 The Court, thus, finds Section 5 to
be unreasonable and oppressive as it will substantially divest the
respondents of the beneficial use of their property solely for
aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is
invalid.

The Court first turns its attention to Section 5 which requires the
fivemeter setback of the fence to provide for a parking area. The
petitioners initially argued that the ownership of the parking area to
be created would remain with the respondents as it would primarily
be for the use of its students and faculty, and that its use by the
public on non-school days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5 was, in fact,
invalid for being repugnant to the Constitution.31

The petitioners, however, argue that the invalidity of Section 5 was

properly cured by Zoning Ordinance No. 303, 34 Series of 2000,
which classified the respondents property to be within an
institutional zone, under which a five-meter setback has been
required.

The Court agrees with the latter position.

The Court notes with displeasure that this argument was only
raised for the first time on appeal in this Court in the petitioners
Reply. Considering that Ordinance No. 303 was enacted on
December 20, 2000, the petitioners could very well have raised it in
their defense before the RTC in 2002. The settled rule in this
jurisdiction is that a party cannot change the legal theory of this
case under which the controversy was heard and decided in the
trial court. It should be the same theory under which the review on
appeal is conducted. Points of law, theories, issues, and arguments

The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the
public, considering that it would no longer be for the exclusive use
of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a
provision on eminent domain, provides that private property shall
not be taken for public use without just compensation.

PALISOC & SARMIENTO

The petitioners are mistaken. Ordinance No. 303, Series of 2000,

has no bearing to the case at hand.

115 | P a g e

not adequately brought to the attention of the lower court will not
be ordinarily considered by a reviewing court, inasmuch as they
cannot be raised for the first time on appeal. This will be offensive
to the basic rules of fair play, justice, and due process.35
Furthermore, the two ordinances have completely different
purposes and subjects. Ordinance No. 192 aims to regulate the
construction of fences, while Ordinance No. 303 is a zoning
ordinance which classifies the city into specific land uses. In fact,
the five-meter setback required by Ordinance No. 303 does not
even appear to be for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303,
cure Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by
the respondents is Ordinance No. 192 and, as such, the precise
issue to be determined is whether the petitioners can be prohibited
from enforcing the said ordinance, and no other, against the
respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192
may be invalid, Section 3.1 limiting the height of fences to one
meter and requiring fences in excess of one meter to be at least
80% see-thru, should remain valid and enforceable against the
respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the petitioners
must show the reasonable relation between the purpose of the
police power measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.36
The principal purpose of Section 3.1 is to discourage, suppress or
prevent the concealment of prohibited or unlawful acts. The
ultimate goal of this objective is clearly the prevention of crime to
ensure public safety and security. The means employed by the
petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to private
rights.

PALISOC & SARMIENTO

The petitioners have not adequately shown, and it does not appear
obvious to this Court, that an 80% see-thru fence would provide
better protection and a higher level of security, or serve as a more
satisfactory criminal deterrent, than a tall solid concrete wall. It
may even be argued that such exposed premises could entice and
tempt would-be criminals to the property, and that a see-thru fence
would be easier to bypass and breach. It also appears that the
respondents concrete wall has served as more than sufficient
protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as
previously discussed, the State may not, under the guise of police
power, infringe on private rights solely for the sake of the aesthetic
appearance of the community. Similarly, the Court cannot perceive
how a see-thru fence will foster neighborliness between members
of a community.
Compelling the respondents to construct their fence in accordance
with the assailed ordinance is, thus, a clear encroachment on their
right to property, which necessarily includes their right to decide
how best to protect their property.
It also appears that requiring the exposure of their property via a
seethru fence is violative of their right to privacy, considering that
the residence of the Benedictine nuns is also located within the
property. The right to privacy has long been considered a
fundamental right guaranteed by the Constitution that must be
protected from intrusion or constraint. The right to privacy is
essentially the right to be let alone,37 as governmental powers
should stop short of certain intrusions into the personal life of its
citizens.38 It is inherent in the concept of liberty, enshrined in the
Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III
of the 1987 Constitution.39
The enforcement of Section 3.1 would, therefore, result in an undue
interference with the respondents rights to property and privacy.
Section 3.1 of Ordinance No. 192 is, thus, also invalid and cannot
be enforced against the respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by
including the regulation of educational institutions which was
unintentionally omitted, and giving said educational institutions five
(5) years from the passage of Ordinance No. 192 (and not
Ordinance No. 217) to conform to its provisions.40 The petitioners
argued that the amendment could be retroactively applied because

116 | P a g e

the assailed ordinance is a curative statute which is retroactive in

nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be
enforced against the respondents, it is no longer necessary to rule
on the issue of retroactivity. The Court shall, nevertheless, pass
upon the issue for the sake of clarity.
Curative statutes are enacted to cure defects in a prior law or to
validate legal proceedings which would otherwise be void for want
of conformity with certain legal requirements. They are intended to
supply defects, abridge superfluities and curb certain evils. They
are intended to enable persons to carry into effect that which they
have designed or intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity
in their own action. They make valid that which, before the
enactment of the statute was invalid. Their purpose is to give
validity to acts done that would have been invalid under existing
laws, as if existing laws have been complied with. Curative
statutes, therefore, by their very essence, are retroactive.41
The petitioners argue that Ordinance No. 192 is a curative statute
as it aims to correct or cure a defect in the National Building Code,
namely, its failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the
petitioners attempt to add lacking provisions to the National
Building Code. This is not what is contemplated by curative
statutes, which intend to correct irregularities or invalidity in the
law. The petitioners fail to point out any irregular or invalid
provision. As such, the assailed ordinance cannot qualify as
curative and retroactive in nature.

Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus,

invalid and cannot be enforced against the respondents.
Nonetheless, "the general rule is that where part of a statute is void
as repugnant to the Constitution, while another part is valid, the
valid portion, if susceptible to being separated from the invalid,
may stand and be enforced."42 Thus, the other sections of the
assailed ordinance remain valid and enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear that the
petitioners were acting in excess of their jurisdiction in enforcing
Ordinance No. 192 against the respondents. The CA was correct in
affirming the decision of the RTC in issuing the writ of prohibition.
The petitioners must permanently desist from enforcing Sections
3.1 and 5 of the assailed ordinance on the respondents' property in
Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002
Decision of the Regional Trial Court in SCA Case No. 2000-381-MK
is AFFIRMED but MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition is
hereby issued commanding the respondents to permanently desist
from enforcing or implementing Sections 3.1 and 5 of Ordinance
No. 192, Series of 1994, as amended, on the petitioners' property in
question located in Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.

At any rate, there appears to be no insufficiency in the National

Building Code with respect to parking provisions in relation to the
issue of the respondents. Paragraph 1.16.1, Rule XIX of the Rules
and Regulations of the said code requires an educational institution
to provide one parking slot for every ten classrooms. As found by
the lower courts, the respondents provide a total of 76 parking slots
for their 80 classrooms and, thus, had more than sufficiently
complied with the law.
Ordinance No. 192, as amended, is, therefore, not a curative
statute which may be applied retroactively.
Separability

PALISOC & SARMIENTO

117 | P a g e

EMILIO GANCAYCO, Petitioner, vs. CITY GOVERNMENT OF

QUEZON
CITY
AND
METRO
MANILA
DEVELOPMENT
AUTHORITY, Respondents. METRO MANILA DEVELOPMENT
AUTHORITY, Petitioner, vs. JUSTICE EMILIO A. GANCAYCO
(Retired), Respondent.
G.R. No. 177807 and G.R. No. 177933 | 2011-10-11

the ground floor facing the sidewalk a few meters away from the
property line. Thus, the building owner is not allowed to construct
his wall up to the edge of the property line, thereby creating a
space or shelter under the first floor. In effect, property owners
relinquish the use of the space for use as an arcade for pedestrians,
instead of using it for their own purposes.

EN BANC

The ordinance was amended several times. On 8 August 1960,

properties located at the Quezon City-San Juan boundary were
exempted by Ordinance No. 60-4477 from the construction of
arcades. This ordinance was further amended by Ordinance No. 604513, extending the exemption to commercial buildings from
Balete Street to Seattle Street. Ordinance No. 6603 dated 1 March
1966 meanwhile reduced the width of the arcades to three meters
for buildings along V. Luna Road, Central District, Quezon City.

DECISION
SERENO, J.:
Before us are consolidated Petitions for Review under Rule 45 of the
Rules of Court assailing the Decision[1] promulgated on 18 July
2006 and the Resolution[2] dated 10 May 2007 of the Court of
Appeals in CA-G.R. SP No. 84648.
The Facts
In the early 1950s, retired Justice Emilio A. Gancayco bought a
parcel of land located at 746 Epifanio delos Santos Avenue (EDSA),
[3] Quezon City with an area of 375 square meters and covered by
Transfer Certificate of Title (TCT) No. RT114558.
On 27 March 1956, the Quezon City Council issued Ordinance No.
2904, entitled An Ordinance Requiring the Construction of Arcades,
for Commercial Buildings to be Constructed in Zones Designated as
Business Zones in the Zoning Plan of Quezon City, and Providing
Penalties in Violation Thereof.[4]
An arcade is defined as any portion of a building above the first
floor projecting over the sidewalk beyond the first storey wall used
as protection for pedestrians against rain or sun.[5]
Ordinance No. 2904 required the relevant property owner to
construct an arcade with a width of 4.50 meters and height of 5.00
meters along EDSA, from the north side of Santolan Road to one lot
after Liberty Avenue, and from one lot before Central Boulevard to
the Botocan transmission line.
At the outset, it bears emphasis that at the time Ordinance No.
2904 was passed by the city council, there was yet no building
code passed by the national legislature. Thus, the regulation of the
construction of buildings was left to the discretion of local
government units. Under this particular ordinance, the city council
required that the arcade is to be created by constructing the wall of

PALISOC & SARMIENTO

The ordinance covered the property of Justice Gancayco.

Subsequently, sometime in 1965, Justice Gancayco sought the
exemption of a two-storey building being constructed on his
property from the application of Ordinance No. 2904 that he be
exempted from constructing an arcade on his property.
On 2 February 1966, the City Council acted favorably on Justice
Gancaycos request and issued Resolution No. 7161, S-66, subject
to the condition that upon notice by the City Engineer, the owner
shall, within reasonable time, demolish the enclosure of said arcade
at his own expense when public interest so demands.[6]
Decades after, in March 2003, the Metropolitan Manila
Development Authority (MMDA) conducted operations to clear
obstructions along the sidewalk of EDSA in Quezon City pursuant to
Metro Manila Councils (MMC) Resolution No. 02-28, Series of 2002.
[7] The resolution authorized the MMDA and local government units
to clear the sidewalks, streets, avenues, alleys, bridges, parks and
other public places in Metro Manila of all illegal structures and
obstructions.[8]
On 28 April 2003, the MMDA sent a notice of demolition to Justice
Gancayco alleging that a portion of his building violated the
National Building Code of the Philippines (Building Code)[9] in
relation to Ordinance No. 2904. The MMDA gave Justice Gancayco
fifteen (15) days to clear the portion of the building that was
supposed to be an arcade along EDSA.[10]
Justice Gancayco did not comply with the notice. Soon after the
lapse of the fifteen (15) days, the MMDA proceeded to demolish the
party wall, or what was referred to as the wing walls, of the

118 | P a g e

ground floor structure. The records of the present case are not
entirely clear on the extent of the demolition; nevertheless, the fact
of demolition was not disputed. At the time of the demolition, the
affected portion of the building was being used as a restaurant.
On 29 May 2003, Justice Gancayco filed a Petition[11] with prayer
for a temporary restraining order and/or writ of preliminary
injunction before the Regional Trial Court (RTC) of Quezon City,
docketed as Civil Case No. Q03-49693, seeking to prohibit the
MMDA and the City Government of Quezon City from demolishing
his property. In his Petition,[12] he alleged that the ordinance
authorized the taking of private property without due process of
law and just compensation, because the construction of an arcade
will require 67.5 square meters from the 375 square meter
property. In addition, he claimed that the ordinance was selective
and discriminatory in its scope and application when it allowed the
owners of the buildings located in the Quezon City-San Juan
boundary to Cubao Rotonda, and Balete to Seattle Streets to
construct arcades at their option. He thus sought the declaration of
nullity of Ordinance No. 2904 and the payment of damages.
Alternately, he prayed for the payment of just compensation should
the court hold the ordinance valid.
The City Government of Quezon City claimed that the ordinance
was a valid exercise of police power, regulating the use of property
in a business zone. In addition, it pointed out that Justice Gancayco
was already barred by estoppel, laches and prescription.
Similarly, the MMDA alleged that Justice Gancayco could not seek
the nullification of an ordinance that he had already violated, and
that the ordinance enjoyed the presumption of constitutionality. It
further stated that the questioned property was a public nuisance
impeding the safe passage of pedestrians. Finally, the MMDA
claimed that it was merely implementing the legal easement
established by Ordinance No. 2904.[13]
The RTC rendered its Decision on 30 September 2003 in favor of
Justice Gancayco.[14] It held that the questioned ordinance was
unconstitutional, ruling that it allowed the taking of private
property for public use without just compensation. The RTC said
that because 67.5 square meters out of Justice Gancaycos 375
square meters of property were being taken without compensation
for the publics benefit, the ordinance was confiscatory and
oppressive. It likewise held that the ordinance violated owners
right to equal protection of laws. The dispositive portion thus
states:

PALISOC & SARMIENTO

WHEREFORE, the petition is hereby granted and the Court hereby

declares Quezon City Ordinance No. 2094,[15] Series of 1956 to be
unconstitutional, invalid and void ab initio. The respondents are
hereby permanently enjoined from enforcing and implementing the
said ordinance, and the respondent MMDA is hereby directed to
immediately restore the portion of the party wall or wing wall of the
building of the petitioner it destroyed to its original condition.
IT IS SO ORDERED.
The MMDA thereafter appealed from the Decision of the trial court.
On 18 July 2006, the Court of Appeals (CA) partly granted the
appeal.[16] The CA upheld the validity of Ordinance No. 2904 and
lifted the injunction against the enforcement and implementation of
the ordinance. In so doing, it held that the ordinance was a valid
exercise of the right of the local government unit to promote the
general welfare of its constituents pursuant to its police powers.
The CA also ruled that the ordinance established a valid
classification of property owners with regard to the construction of
arcades in their respective properties depending on the location.
The CA further stated that there was no taking of private property,
since the owner still enjoyed the beneficial ownership of the
property, to wit:
Even with the requirement of the construction of arcaded sidewalks
within his commercial lot, appellee still retains the beneficial
ownership of the said property. Thus, there is no taking for public
use which must be subject to just compensation. While the arcaded
sidewalks contribute to the public good, for providing safety and
comfort to passersby, the ultimate benefit from the same still
redounds to appellee, his commercial establishment being at the
forefront of a busy thoroughfare like EDSA. The arcaded sidewalks,
by their nature, assure clients of the commercial establishments
thereat some kind of protection from accidents and other hazards.
Without doubt, this sense of protection can be a boon to the
business activity therein engaged. [17]
Nevertheless, the CA held that the MMDA went beyond its powers
when it demolished the subject property. It further found that
Resolution No. 02-28 only refers to sidewalks, streets, avenues,
alleys, bridges, parks and other public places in Metro Manila, thus
excluding Justice Gancaycos private property. Lastly, the CA stated
that the MMDA is not clothed with the authority to declare, prevent
or abate nuisances. Thus, the dispositive portion stated:

119 | P a g e

WHEREFORE,
the
appeals
are PARTLY
GRANTED.
The Decision dated September 30, 2003 of the Regional Trial Court,
Branch 224, Quezon City, is MODIFIED, as follows:
1) The validity and constitutionality of Ordinance No. 2094,[18]
Series of 1956, issued by the City Council of Quezon City,
is UPHELD; and
2) The injunction against the enforcement and implementation of
the said Ordinance is LIFTED.
SO ORDERED.
This ruling prompted the MMDA and Justice Gancayco to file their
respective Motions for Partial Reconsideration.[19]
On 10 May 2007, the CA denied the motions stating that the parties
did not present new issues nor offer grounds that would merit the
reconsideration of the Court.[20]
Dissatisfied with the ruling of the CA, Justice Gancayco and the
MMDA filed their respective Petitions for Review before this Court.
The issues raised by the parties are summarized as follows:
I.
WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED
FROM ASSAILING THE VALIDITY OF ORDINANCE NO. 2904.
II.
WHETHER OR NOT ORDINANCE NO. 2904 IS
CONSTITUTIONAL.
III.
WHETHER OR NOT THE WING WALL OF JUSTICE
GANCAYCOS BUILDING IS A PUBLIC NUISANCE.
IV.
WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED THE
PROPERTY OF JUSTICE GANCAYCO.
The Courts Ruling
Estoppel
The MMDA and the City Government of Quezon City both claim that
Justice Gancayco was estopped from challenging the ordinance,
because, in 1965, he asked for an exemption from the application
of the ordinance. According to them, Justice Gancayco thereby
recognized the power of the city government to regulate the
construction of buildings.
To recall, Justice Gancayco questioned the constitutionality of the
ordinance on two grounds: (1) whether the ordinance takes
private property without due process of law and just compensation;

PALISOC & SARMIENTO

and (2) whether the ordinance violates the equal protection of

rights because it allowed exemptions from its application.
On the first ground, we find that Justice Gancayco may still question
the constitutionality of the ordinance to determine whether or not
the ordinance constitutes a taking of private property without
due process of law and just compensation. It was only in 2003
when he was allegedly deprived of his property when the MMDA
demolished a portion of the building. Because he was granted an
exemption in 1966, there was no taking yet to speak of.
Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,
[21] we held:
It is therefore decisively clear that estoppel cannot apply in this
case. The fact that petitioner acquiesced in the special conditions
imposed by the City Mayor in subject business permit does not
preclude it from challenging the said imposition, which is ultra vires
or beyond the ambit of authority of respondent City
Mayor. Ultra vires acts or acts which are clearly beyond the
scope of one's authority are null and void and cannot be
given any effect. The doctrine of estoppel cannot operate to
give effect to an act which is otherwise null and void orultra
vires. (Emphasis supplied.)
Recently, in British American Tobacco v. Camacho,[22] we likewise
held:
We find that petitioner was not guilty of estoppel. When it made the
undertaking to comply with all issuances of the BIR, which at that
time it considered as valid, petitioner did not commit any false
misrepresentation or misleading act. Indeed, petitioner cannot be
faulted for initially undertaking to comply with, and subjecting itself
to the operation of Section 145(C), and only later on filing the
subject case praying for the declaration of its unconstitutionality
when the circumstances change and the law results in what it
perceives to be unlawful discrimination. The mere fact that a law
has been relied upon in the past and all that time has not
been attacked as unconstitutional is not a ground for
considering petitioner estopped from assailing its validity.
For courts will pass upon a constitutional question only
when
presented
before
it
in bona
fidecases
for
determination, and the fact that the question has not been
raised before is not a valid reason for refusing to allow it to
be raised later. (Emphasis supplied.)

120 | P a g e

Anent the second ground, we find that Justice Gancayco may not
question the ordinance on the ground of equal protection when he
also benefited from the exemption. It bears emphasis that Justice
Gancayco himself requested for an exemption from the application
of the ordinance in 1965 and was eventually granted one.
Moreover, he was still enjoying the exemption at the time of the
demolition as there was yet no valid notice from the city engineer.
Thus, while the ordinance may be attacked with regard to its
different treatment of properties that appears to be similarly
situated, Justice Gancayco is not the proper person to do so.
Zoning and the regulation of the
construction of buildings are valid
exercises of police power.
In MMDA v. Bel-Air Village Association,[23] we discussed the nature
of police powers exercised by local government units, to wit:
Police power is an inherent attribute of sovereignty. It has been
defined as the power vested by the Constitution in the legislature
to make, ordain, and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be
for the good and welfare of the commonwealth, and for the
subjects of the same. The power is plenary and its scope is vast
and pervasive, reaching and justifying measures for public health,
public safety, public morals, and the general welfare.
It bears stressing that police power is lodged primarily in the
National Legislature. It cannot be exercised by any group or body of
individuals not possessing legislative power. The National
Legislature, however, may delegate this power to the President and
administrative boards as well as the lawmaking bodies of municipal
corporations or local government units. Once delegated, the agents
can exercise only such legislative powers as are conferred on them
by the national lawmaking body.
To resolve the issue on the constitutionality of the ordinance, we
must first determine whether there was a valid delegation of police
power. Then we can determine whether the City Government of
Quezon City acted within the limits of the delegation.
It is clear that Congress expressly granted the city government,
through the city council, police power by virtue of Section 12(oo) of
Republic Act No. 537, or the Revised Charter of Quezon City,[24]
which states:

PALISOC & SARMIENTO

To make such further ordinances and regulations not repugnant to

law as may be necessary to carry into effect and discharge the
powers and duties conferred by this Act and such as it shall deem
necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort,
and convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with
such lawful fines or penalties as the City Council may prescribe
under the provisions of subsection (jj) of this section.
Specifically, on the powers of the city government to regulate the
construction of buildings, the Charter also expressly provided that
the city government had the power to regulate the kinds of
buildings and structures that may be erected within fire limits and
the manner of constructing and repairing them.[25]
With regard meanwhile to the power of the local government units
to issue zoning ordinances, we apply Social Justice Society v.
Atienza.[26] In that case, the Sangguniang Panlungsod of Manila
City enacted an ordinance on 28 November 2001 reclassifying
certain areas of the city from industrial to commercial. As a result
of the zoning ordinance, the oil terminals located in those areas
were no longer allowed. Though the oil companies contended that
they stood to lose billions of pesos, this Court upheld the power of
the city government to pass the assailed ordinance, stating:
In the exercise of police power, property rights of individuals may
be subjected to restraints and burdens in order to fulfil the
objectives of the government. Otherwise stated, the government
may enact legislation that may interfere with personal
liberty, property, lawful businesses and occupations to
promote the general welfare. However, the interference
must be reasonable and not arbitrary. And to forestall
arbitrariness, the methods or means used to protect public
health, morals, safety or welfare must have a reasonable
relation to the end in view.
The means adopted by the Sanggunian was the enactment of a
zoning ordinance which reclassified the area where the depot is
situated from industrial to commercial. A zoning ordinance is
defined as a local city or municipal legislation which
logically arranges, prescribes, defines and apportions a
given political subdivision into specific land uses as present
and future projection of needs. As a result of the zoning, the
continued operation of the businesses of the oil companies in their
present location will no longer be permitted. The power to
establish zones for industrial, commercial and residential

121 | P a g e

uses is derived from the police power itself and is exercised

for the protection and benefit of the residents of a
locality. Consequently, the enactment of Ordinance No. 8027 is
within the power of the Sangguniang Panlungsod of the City of
Manila and any resulting burden on those affected cannot be said
to be unjust... (Emphasis supplied)
In Carlos Superdrug v. Department
Development,[27] we also held:

of

Social

Welfare

and

For this reason, when the conditions so demand as determined by

the legislature, property rights must bow to the primacy of
police power because property rights, though sheltered by
due process, must yield to general welfare.
Police power as an attribute to promote the common good
would be diluted considerably if on the mere plea of
petitioners that they will suffer loss of earnings and capital,
the questioned provision is invalidated. Moreover, in the
absence of evidence demonstrating the alleged confiscatory
effect of the provision in question, there is no basis for its
nullification in view of the presumption of validity which
every law has in its favor. (Emphasis supplied.)
In the case at bar, it is clear that the primary objectives of the city
council of Quezon City when it issued the questioned ordinance
ordering the construction of arcades were the health and safety of
the city and its inhabitants; the promotion of their prosperity; and
the improvement of their morals, peace, good order, comfort, and
the convenience. These arcades provide safe and convenient
passage along the sidewalk for commuters and pedestrians, not
just the residents of Quezon City. More especially so because the
contested portion of the building is located on a busy segment of
the city, in a business zone along EDSA.
Corollarily, the policy of the Building Code,[28] which was passed
after the Quezon City Ordinance, supports the purpose for the
enactment of Ordinance No. 2904. The Building Code states:
Section 102. Declaration of Policy. It is hereby declared to be the
policy of the State to safeguard life, health, property, and public
welfare, consistent with the principles of sound environmental
management and control; and to this end, make it the purpose of
this Code to provide for all buildings and structures, a framework of
minimum standards and requirements to regulate and control their
location, site, design quality of materials, construction, occupancy,
and maintenance.

PALISOC & SARMIENTO

Section 1004 likewise requires the construction of arcades

whenever existing or zoning ordinances require it. Apparently, the
law allows the local government units to determine whether
arcades are necessary within their respective jurisdictions.
Justice Gancayco argues that there is a three-meter sidewalk in
front of his property line, and the arcade should be constructed
above that sidewalk rather than within his property line. We do not
need to address this argument inasmuch as it raises the issue of
the wisdom of the city ordinance, a matter we will not and need not
delve into.
To reiterate, at the time that the ordinance was passed, there was
no national building code enforced to guide the city council; thus,
there was no law of national application that prohibited the city
council from regulating the construction of buildings, arcades and
sidewalks in their jurisdiction.
The wing walls of the building are not
nuisances per se.
The MMDA claims that the portion of the building in question is a
nuisance per se.
We disagree.
The fact that in 1966 the City Council gave Justice Gancayco an
exemption from constructing an arcade is an indication that the
wing walls of the building are not nuisances per se. The wing walls
do not per se immediately and adversely affect the safety of
persons and property. The fact that an ordinance may declare a
structure illegal does not necessarily make that structure a
nuisance.
Article 694 of the Civil Code defines nuisance as any act, omission,
establishment, business, condition or property, or anything else
that (1) injures or endangers the health or safety of others; (2)
annoys or offends the senses; (3) shocks, defies or disregards
decency or morality; (4) obstructs or interferes with the free
passage of any public highway or street, or any body of water; or,
(5) hinders or impairs the use of property. A nuisance may be per
se or per accidens. A nuisance per se is that which affects the
immediate safety of persons and property and may summarily be
abated under the undefined law of necessity.[29]
Clearly, when Justice Gancayco was given a permit to construct the
building, the city council or the city engineer did not consider the
building, or its demolished portion, to be a threat to the safety of

122 | P a g e

persons and property. This fact alone should have warned the
MMDA against summarily demolishing the structure.
Neither does the MMDA have the power to declare a thing a
nuisance. Only courts of law have the power to determine whether
a thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp.,
[30] we held:
We agree with petitioner's contention that, under Section 447(a)(3)
(i) of R.A. No. 7160, otherwise known as the Local Government
Code, the Sangguniang Panglungsod is empowered to enact
ordinances declaring, preventing or abating noise and other forms
of nuisance. It bears stressing, however, that the Sangguniang
Bayan cannot declare a particular thing as a nuisance per se and
order its condemnation. It does not have the power to find, as
a fact, that a particular thing is a nuisance when such thing
is not a nuisance per se; nor can it authorize the
extrajudicial condemnation and destruction of that as a
nuisance which in its nature, situation or use is not such.
Those things must be determined and resolved in the
ordinary courts of law. If a thing be in fact, a nuisance due to the
manner of its operation, that question cannot be determined by a
mere resolution of the Sangguniang Bayan. (Emphasis supplied.)
MMDA illegally demolished
the property of Justice Gancayco.
MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series
of 2002, it is empowered to demolish Justice Gancaycos property. It
insists that the Metro Manila Council authorized the MMDA and the
local government units to clear the sidewalks, streets, avenues,
alleys, bridges, parks and other public places in Metro Manila of all
illegal structures and obstructions. It further alleges that it
demolished the property pursuant to the Building Code in relation
to Ordinance No. 2904 as amended.
However, the Building Code clearly provides the process by which a
building may be demolished. The authority to order the demolition
of any structure lies with the Building Official. The pertinent
provisions of the Building Code provide:
SECTION 205. Building Officials. Except as otherwise provided
herein, the Building Official shall be responsible for carrying out the
provisions of this Code in the field as well as the enforcement of
orders and decisions made pursuant thereto.

PALISOC & SARMIENTO

Due to the exigencies of the service, the Secretary may designate

incumbent Public Works District Engineers, City Engineers and
Municipal Engineers act as Building Officials in their respective
areas of jurisdiction.
The designation made by the Secretary under this Section shall
continue until regular positions of Building Official are provided or
unless sooner terminated for causes provided by law or decree.
xxx

xxx

xxx

SECTION 207. Duties of a Building Official. In his respective

territorial jurisdiction, the Building Official shall be primarily
responsible for the enforcement of the provisions of this Code as
well as of the implementing rules and regulations issued therefor.
He is the official charged with the duties of issuing building permits.
In the performance of his duties, a Building Official may enter any
building or its premises at all reasonable times to inspect and
determine compliance with the requirements of this Code, and the
terms and conditions provided for in the building permit as issued.
When any building work is found to be contrary to the
provisions of this Code, the Building Official may order the
work stopped and prescribe the terms and/or conditions
when the work will be allowed to resume. Likewise, the
Building Official is authorized to order the discontinuance of
the occupancy or use of any building or structure or portion
thereof found to be occupied or used contrary to the
provisions of this Code.
xxx

xxx

xxx

SECTION 215. Abatement of Dangerous Buildings. When

any building or structure is found or declared to be
dangerous or ruinous, the Building Official shall order its
repair, vacation or demolition depending upon the degree of
danger to life, health, or safety. This is without prejudice to
further action that may be taken under the provisions of
Articles 482 and 694 to 707 of the Civil Code of the
Philippines. (Emphasis supplied.)
MMDA v. Trackworks Rail Transit Advertising, Vending and
Promotions, Inc.[31] is applicable to the case at bar. In that case,
MMDA, invoking its charter and the Building Code, summarily
dismantled the advertising media installed on the Metro Rail Transit
(MRT) 3. This Court held:

123 | P a g e

It is futile for MMDA to simply invoke its legal mandate to justify the
dismantling of Trackworks' billboards, signages and other
advertising media. MMDA simply had no power on its own to
dismantle, remove, or destroy the billboards, signages and other
advertising media installed on the MRT3 structure by Trackworks.
In Metropolitan Manila Development Authority v. Bel-Air Village
Association, Inc., Metropolitan Manila Development Authority v.
Viron
Transportation
Co.,
Inc.,
and Metropolitan
Manila
Development Authority v. Garin, the Court had the occasion to
rule that MMDA's powers were limited to the formulation,
coordination, regulation, implementation, preparation,
management, monitoring, setting of policies, installing a
system, and administration. Nothing in Republic Act No.
7924 granted MMDA police power, let alone legislative
power.
Clarifying the real nature of MMDA, the Court held:
...The MMDA is, as termed in the charter itself, a
"development authority". It is an agency created for the
purpose of laying down policies and coordinating with the
various
national
government
agencies,
people's
organizations, non-governmental organizations and the
private sector for the efficient and expeditious delivery of
basic services in the vast metropolitan area. All its
functions are administrative in nature and these are
actually summed up in the charter itself, viz:
Sec.2. Creation of the Metropolitan Manila Development Authority.xxx.
The MMDA shall perform planning, monitoring and coordinative
functions, and in the process exercise regulatory and supervisory
authority over the delivery of metro-wide services within Metro
Manila, without diminution of the autonomy of local government
units concerning purely local matters.
The Court also agrees with the CA's ruling that MMDA Regulation
No. 96-009 and MMC Memorandum Circular No. 88-09 did not apply
to Trackworks' billboards, signages and other advertising media.
The prohibition against posting, installation and display of
billboards, signages and other advertising media applied only to
public areas, but MRT3, being private property pursuant to the
BLT agreement between the Government and MRTC, was
not one of the areas as to which the prohibition
applied. Moreover, MMC Memorandum Circular No. 88-09 did not
apply to Trackworks' billboards, signages and other advertising
media in MRT3, because it did not specifically cover MRT3, and

PALISOC & SARMIENTO

because it was issued a year prior to the construction of MRT3 on

the center island of EDSA. Clearly, MMC Memorandum Circular No.
88-09 could not have included MRT3 in its prohibition.
MMDA's insistence that it was only implementing Presidential
Decree No. 1096 (Building Code) and its implementing rules and
regulations is not persuasive. The power to enforce the
provisions of the Building Code was lodged in the
Department of Public Works and Highways (DPWH), not in
MMDA, considering the law's following provision, thus:
Sec. 201. Responsibility for Administration and Enforcement. The administration and enforcement of the provisions of this Code
including the imposition of penalties for administrative violations
thereof is hereby vested in the Secretary of Public Works,
Transportation and Communications, hereinafter referred to as the
"Secretary."
There is also no evidence showing that MMDA had been
delegated
by
DPWH
to
implement
the
Building
Code. (Emphasis supplied.)
Additionally, the penalty prescribed by Ordinance No. 2904 itself
does not include the demolition of illegally constructed buildings in
case of violations. Instead, it merely prescribes a punishment of a
fine of not more than two hundred pesos (P200.00) or by
imprisonment of not more than thirty (30) days, or by both such
fine and imprisonment at the discretion of the Court, Provided,
that if the violation is committed by a corporation, partnership, or
any juridical entity, the Manager, managing partner, or any person
charged with the management thereof shall be held responsible
therefor. The ordinance itself also clearly states that it is the
regular courts that will determine whether there was a violation of
the ordinance.
As pointed out in Trackworks, the MMDA does not have the power
to enact ordinances. Thus, it cannot supplement the provisions of
Quezon City Ordinance No. 2904 merely through its Resolution No.
02-28.
Lastly, the MMDA claims that the City Government of Quezon City
may be considered to have approved the demolition of the
structure, simply because then Quezon City Mayor Feliciano R.
Belmonte signed MMDA Resolution No. 02-28. In effect, the city
government delegated these powers to the MMDA. The powers
referred to are those that include the power to declare, prevent and
abate a nuisance[32] and to further impose the penalty of removal

124 | P a g e

or demolition of the building or structure by the owner or by the

city at the expense of the owner.[33]
MMDAs argument does not hold water. There was no valid
delegation of powers to the MMDA. Contrary to the claim of the
MMDA, the City Government of Quezon City washed its hands off
the acts of the former. In its Answer,[34] the city government
stated that the demolition was undertaken by the MMDA only,
without the participation and/or consent of Quezon City. Therefore,
the MMDA acted on its own and should be held solely liable for the
destruction of the portion of Justice Gancaycos building.
WHEREFORE, in view of the foregoing, the Decision of the Court of
Appeals in CA-G.R. SP No. 84648 is AFFIRMED.
SO ORDERED.

PALISOC & SARMIENTO

125 | P a g e

METROPOLITAN
MANILA DEVELOPMENT
AUTHORITY,
Petitioner,
versus
TRACKWORKS
RAIL
TRANSIT
ADVERTISING,
VENDING
AND
PROMOTIONS,
INC.,
Respondent
G.R. No. 179554 | 2009-12-16

or around the Boni Avenue, Santolan and Buendia Stations), plus

about 0.1 to 0.2 line kilometers extending from the North Avenue
Station to the Depot, together with the Stations, 73 Light Rail
Vehicles and all ancillary plant, equipment and facilities, as more
particularly
detailed
in
the
Specifications.

RESOLUTION

16.2. Assignment of Rights. During the Development Rights Period,

Metro Rail shall be entitled to assign all or any of its rights, titles
and interests in the Development Rights to bona fide real estate
developers. In this connection, Metro Rail may enter into such
development, lease, sub-lease or other agreements or contracts
relating to the Depot and the air space above the Stations (the
space not needed for all or any portion of the operation of the
LRTS) for all or any portion of the Development Rights Period....

BERSAMIN,

J.:

This case concerns whether the Metropolitan Manila Development

Authority (MMDA) could unilaterally dismantle the billboards,
signages and other advertizing media in the structures of the Metro
Rail Transit 3 (MRT3) installed by respondent advertising company
by virtue of its existing contract with the owner of the MRT3.
The trial and appellate courts ruled that MMDA did not have the
authority to dismantle. MMDA is now before the Court to assail such
adverse
ruling.
Antecedents
In 1997, the Government, through the Department of
Transportation and Communications, entered into a build-leasetransfer agreement (BLT agreement) with Metro Rail Transit
Corporation, Limited (MRTC) pursuant to Republic Act No. 6957
(Build, Operate and Transfer Law), under which MRTC undertook to
build MRT3 subject to the condition that MRTC would own MRT3 for
25 years, upon the expiration of which the ownership would
transfer to the Government.
The BLT agreement stipulated, among others, that MRTC could build
and develop commercial premises in the MRT3 structures, or obtain
advertising income therefrom, viz:
16.1. Details of Development Rights. DOTC hereby confirms and
awards to Metro Rail the rights to (a) develop commercial premises
in the Depot and the air space above the Stations, which shall be
allowed to such height as is legally and technically feasible, (b)
lease or sub-lease interests or assign such interests in the Depot
and such air space and (c) obtain any advertising income from the
Depot
and
such
air
space
and
LRTS
Phase
I....
"LRTS Phase I" means the rail transport system comprising about
16.9 line kilometers extending from Taft Avenue, Pasay City, to
North Avenue, Quezon City, occupying a strip in the center of EDSA
approximately 10.5 meters wide (approximately 12 meters wide at

PALISOC & SARMIENTO

In 1998, respondent Trackworks Rail Transit Advertising, Vending &

Promotions, Inc. (Trackworks) entered into a contract for advertising
services with MRTC. Trackworks thereafter installed commercial
billboards, signages and other advertizing media in the different
parts of the MRT3. In 2001, however, MMDA requested Trackworks
to dismantle the billboards, signages and other advertizing media
pursuant to MMDA Regulation No. 96-009, whereby MMDA
prohibited the posting, installation and display of any kind or form
of billboards, signs, posters, streamers, in any part of the road,
sidewalk, center island, posts, trees, parks and open space. After
Trackworks refused the request of MMDA, MMDA proceeded to
dismantle the former's billboards and similar forms of
advertisement.
On March 1, 2002, Trackworks filed against MMDA in the Regional
Trial Court (RTC) in Pasig City an injunction suit (with prayer for the
issuance of a temporary restraining order [TRO] and preliminary
injunction), docketed as Civil Case No. 68864.
On March 6, 2002, the RTC (Branch 155) issued a TRO, enjoining
MMDA from dismantling or destroying Trackworks' billboards,
signages and other advertizing media. On March 25, 2002, the RTC
issued a writ of preliminary injunction for the same purpose.
Without filing a motion for reconsideration to challenge the RTC's
issuances, MMDA brought a petition for certiorari and prohibition
before the Court of Appeals (CA), docketed as C.A.-G.R. SP No.
70932, but the CA denied the petition and affirmed the RTC on
August 31, 2004. The CA ultimately denied MMDA's motion for
reconsideration through its resolution issued on March 14, 2005.
Thence, MMDA appealed to this Court (G.R. No. 167514), which

126 | P a g e

denied MMDA's petition for review on October 25, 2005.[1]

Ruling of the RTC
In the meanwhile, on October 10, 2005, the RTC (Branch 155)
rendered its decision permanently enjoining MMDA from
dismantling, removing or destroying the billboards, signages and
other advertizing media installed by Trackworks on the interior and
exterior
structures
of
the
MRT3.[2]
Ruling of the CA
MMDA appealed the RTC's decision to the CA.
On April 30, 2007, the CA denied the MMDA's appeal,[3] holding
that Trackworks' right to install billboards, signages and other
advertizing media on the interior and exterior structures of the
MRT3 must be protected by a writ of permanent injunction; and
that MMDA had no power to dismantle, remove or destroy
Trackworks' billboards, signages and other advertizing media.[4]
MMDA moved for reconsideration, but the CA resolution denied the
motion for reconsideration on September 3, 2007.[5]
Hence, this appeal by petition for review.
Issues
MMDA claims that its mandate under its charter[6] of formulating,
coordinating and monitoring of policies, standards, progress and
projects for the use of thoroughfares and the promotion of safe and
convenient movement of persons and goods prompted its issuance
of MMDA Regulation No. 96-009, which reads in part:
h.) It is unlawful for any person/s, private or public corporations,
advertising and promotions companies, movie producers,
professionals and service contractors to post, install, display any
kind or form of billboards, signs, posters, streamers, professional
service advertisements and other visual clutters in any part of the
road, sidewalk, center island, posts, trees parks and open space.
MMDA avers that the conversion of the center island of Epifanio
Delos Santos Avenue (EDSA) into the carriageway of the MRT3 line
did not exempt the EDSA center island from the coverage of the
MMDA regulation;[7] that the Government's grant of development
rights to MRTC was not an abdication of its right to regulate, and,

PALISOC & SARMIENTO

therefore, the development of the MRT3 remained subject to all

existing and applicable national and local laws, ordinances, rules
and regulations;[8] that MMDA was merely implementing existing
and applicable laws;[9] that Trackworks' advertising materials were
placed indiscriminately and without due regard to safety, and as
such might be classified as obstructions and distractions to the
motorists traversing EDSA;[10] and that the interests of a few
should not prevail over the good of the greater number in the
community whose safety and general welfare MMDA was mandated
to
protect.[11]
Trackworks maintains, on the other hand, that MMDA's petition was
defective for its failure to raise any genuine question of law; and
that the CA's decision dated April 30, 2007 was valid and correct.
[12]
Ruling of the Court
The petition has no merit.
That Trackworks derived its right to install its billboards, signages
and other advertizing media in the MRT3 from MRTC's authority
under the BLT agreement to develop commercial premises in the
MRT3 structure or to obtain advertising income therefrom is no
longer debatable. Under the BLT agreement, indeed, MRTC owned
the MRT3 for 25 years, upon the expiration of which MRTC would
transfer ownership of the MRT3 to the Government.
Considering that MRTC remained to be the owner of the MRT3
during the time material to this case, and until this date, MRTC's
entering into the contract for advertising services with Trackworks
was a valid exercise of ownership by the former. In fact, in
Metropolitan Manila Development Authority v. Trackworks Rail
Transit Advertising, Vending & Promotions, Inc.,[13] this Court
expressly recognized Trackworks' right to install the billboards,
signages and other advertising media pursuant to said contract.
The latter's right should, therefore, be respected.
It is futile for MMDA to simply invoke its legal mandate to justify the
dismantling of Trackworks' billboards, signages and other
advertising media. MMDA simply had no power on its own to
dismantle, remove, or destroy the billboards, signages and other
advertising media installed on the MRT3 structure by Trackworks. In
Metropolitan Manila Development Authority v. Bel-Air Village
Association, Inc.,[14] Metropolitan Manila Development Authority v.
Viron Transportation Co., Inc.,[15] and Metropolitan Manila
Development Authority v. Garin,[16] the Court had the occasion to

127 | P a g e

rule that MMDA's powers were limited to the formulation,

coordination,
regulation,
implementation,
preparation,
management, monitoring, setting of policies, installing a system,
and administration. Nothing in Republic Act No. 7924 granted
MMDA
police
power,
let
alone
legislative
power.[17]
Clarifying the real nature of MMDA, the Court held:
xxx The MMDA is, as termed in the charter itself, a "development
authority". It is an agency created for the purpose of laying down
policies and coordinating with the various national government
agencies, people's organizations, non-governmental organizations
and the private sector for the efficient and expeditious delivery of
basic services in the vast metropolitan area. All its functions are
administrative in nature and these are actually summed up in the
charter itself, viz:
Sec.2. Creation of the Metropolitan Manila Development Authority.xxx.

Sec. 201. Responsibility for Administration and Enforcement.

The administration and enforcement of the provisions of this Code
including the imposition of penalties for administrative violations
thereof is hereby vested in the Secretary of Public Works,
Transportation and Communications, hereinafter referred to as the
"Secretary."
There is also no evidence showing that MMDA had been delegated
by DPWH to implement the Building Code.
WHEREFORE, we deny the petition for review, and affirm the
decision dated April 30, 2007 and the resolution dated September
3,
2007.
Costs against the petitioner.
SO ORDERED.

The MMDA shall perform planning, monitoring and coordinative

functions, and in the process exercise regulatory and supervisory
authority over the delivery of metro-wide services within Metro
Manila, without diminution of the autonomy of local government
units
concerning
purely
local
matters.[18]
The Court also agrees with the CA's ruling that MMDA Regulation
No. 96-009 and MMC Memorandum Circular No. 88-09 did not apply
to Trackworks' billboards, signages and other advertising media.
The prohibition against posting, installation and display of
billboards, signages and other advertising media applied only to
public areas, but MRT3, being private property pursuant to the BLT
agreement between the Government and MRTC, was not one of the
areas as to which the prohibition applied. Moreover, MMC
Memorandum Circular No. 88-09 did not apply to Trackworks'
billboards, signages and other advertising media in MRT3, because
it did not specifically cover MRT3, and because it was issued a year
prior to the construction of MRT3 on the center island of EDSA.
Clearly, MMC Memorandum Circular No. 88-09 could not have
included
MRT3
in
its
prohibition.
MMDA's insistence that it was only implementing Presidential
Decree No. 1096 (Building Code) and its implementing rules and
regulations is not persuasive. The power to enforce the provisions
of the Building Code was lodged in the Department of Public Works
and Highways (DPWH), not in MMDA, considering the law's
following
provision,
thus:

PALISOC & SARMIENTO

128 | P a g e

ANUNCIACION VDA. DE OUANO, MARIO P. OUANO, LETICIA

OUANO ARNAIZ, and CIELO OUANO MARTINEZ, Petitioners,
vs. THE REPUBLIC OF THE PHILIPPINES, THE MACTAN-CEBU
INTERNATIONAL AIRPORT AUTHORITY, and THE REGISTER OF
DEEDS
FOR
THE
CITY
OF
CEBU,
Respondents.
------------------------------------------------------------------------------------MACTAN-CEBU
INTERNATIONAL
AIRPORT
AUTHORITY
(MCIAA), Petitioner, vs. RICARDO L. INOCIAN, in his personal
capacity and as Attorney-in-Fact of OLYMPIA E. ESTEVES,
EMILIA E. BACALLA, RESTITUTA E. MONTANA, and RAUL L.
INOCIAN; and ALETHA SUICO MAGAT, in her personal
capacity and as Attorney-in-Fact of PHILIP M. SUICO, DORIS
S. DELA CRUZ, JAMES M. SUICO, EDWARD M. SUICO,
ROSELYN SUICO-LAWSIN, REX M. SUICO, KHARLA SUICOGUTIERREZ, ALBERT CHIONGBIAN, and JOHNNY CHAN,
Respondents.
G.R. No. 168770 / G.R. No. 168812 | 2011-02-09
FIRST DIVISION
DECISION
VELASCO, JR., J.:
At the center of these two (2) Petitions for Review on Certiorari
under Rule 45 is the issue of the right of the former owners of lots
acquired for the expansion of the Lahug Airport in Cebu City to
repurchase or secure reconveyance of their respective properties.
In the first petition, docketed as G.R. No. 168770, petitioners
Anunciacion vda. de Ouano, Mario Ouano, Leticia Ouano Arnaiz and
Cielo Ouano Martinez (the Ouanos) seek to nullify the
Decision1 dated September 3, 2004 of the Court of Appeals (CA) in
CA-G.R. CV No. 78027, affirming the Order dated December 9, 2002
of the Regional Trial Court (RTC), Branch 57 in Cebu City, in Civil
Case No. CEB-20743, a suit to compel the Republic of the
Philippines and/or the Mactan-Cebu International Airport Authority
(MCIAA) to reconvey to the Ouanos a parcel of land.
The second petition, docketed as G.R. No. 168812, has the MCIAA
seeking principally to annul and set aside the Decision 2 and
Resolution3 dated January 14, 2005 and June 29, 2005, respectively,
of the CA in CA-G.R. CV No. 64356, sustaining the RTC, Branch 13 in
Cebu City in its Decision of October 7, 1988 in Civil Case No. CEB18370.

PALISOC & SARMIENTO

Per its October 19, 2005 Resolution, the Court ordered the
consolidation of both cases.
Except for the names of the parties and the specific lot designation
involved, the relevant factual antecedents which gave rise to these
consolidated petitions are, for the most part, as set forth in the
Courts Decision4 of October 15, 2003, as reiterated in a
Resolution5 dated
August
9,
2005,
in G.R.
No.
156273 entitled Heirs of Timoteo Moreno and Maria Rotea v.
Mactan-Cebu International Airport Authority (Heirs of Moreno), and
in other earlier related cases.6
In 1949, the National Airport Corporation (NAC), MCIAAs
predecessor agency, pursued a program to expand the Lahug
Airport in Cebu City. Through its team of negotiators, NAC met and
negotiated with the owners of the properties situated around the
airport, which included Lot Nos. 744-A, 745-A, 746, 747, 761-A, 762A, 763-A, 942, and 947 of the Banilad Estate. As the landowners
would later claim, the government negotiating team, as a
sweetener, assured them that they could repurchase their
respective lands should the Lahug Airport expansion project do not
push through or once the Lahug Airport closes or its operations
transferred to Mactan-Cebu Airport. Some of the landowners
accepted the assurance and executed deeds of sale with a right of
repurchase. Others, however, including the owners of the
aforementioned lots, refused to sell because the purchase price
offered was viewed as way below market, forcing the hand of the
Republic, represented by the then Civil Aeronautics Administration
(CAA), as successor agency of the NAC, to file a complaint for the
expropriation of Lot Nos. 744-A, 745-A, 746, 747, 761-A, 762-A,
763-A, 942, and 947, among others, docketed as Civil Case No. R1881 entitled Republic v. Damian Ouano, et al.
On December 29, 1961, the then Court of First Instance (CFI) of
Cebu rendered judgment for the Republic, disposing, in part, as
follows:
IN VIEW OF THE FOREGOING, judgment is hereby rendered:
1. Declaring the expropriation of Lots Nos. 75, 76, 76, 89, 90, 91,
92, 105, 106, 107, 108, 104, 921-A, 88, 93, 913-B, 72, 77, 916, 777A, 918, 919, 920, 764-A, 988, 744-A, 745-A, 746, 747, 762-A, 763-A,
951, 942, 720-A, x x x and 947, included in the Lahug Airport, Cebu
City, justified in and in lawful exercise of the right of eminent
domain.
xxxx

129 | P a g e

3. After the payment of the foregoing financial obligation to the

landowners, directing the latter to deliver to the plaintiff the
corresponding Transfer Certificates of Title to their respective lots;
and upon the presentation of the said titles to the Register of
Deeds, ordering the latter to cancel the same and to issue, in lieu
thereof, new Transfer Certificates of Title in the name of the
plaintiff.7

3. That the old Lahug Airport was closed sometime in June 1992;
4. That the price paid to the lot owners in the expropriation case is
found in the decision of the court; and
5. That some properties were reconveyed by the MCIAA because
the previous owners were able to secure express waivers or riders
wherein the government agreed to return the properties should the
expansion of the Lahug Airport not materialize.

In view of the adverted buy-back assurance made by the

government, the owners of the lots no longer appealed the decision
of the trial court.8 Following the finality of the judgment of
condemnation, certificates of title for the covered parcels of land
were issued in the name of the Republic which, pursuant to
Republic Act No. 6958,9 were subsequently transferred to MCIAA.

During trial, the Inocians adduced evidence which included the

testimony of Ricardo Inocian (Inocian) and Asterio Uy (Uy). Uy, an
employee of the CAA, testified that he was a member of the team
which negotiated for the acquisition of certain lots in Lahug for the
proposed expansion of the Lahug Airport. He recalled that he acted
as the interpreter/spokesman of the team since he could speak the
Cebuano dialect. He stated that the other members of the team of
negotiators were Atty. Pedro Ocampo, Atty. Lansang, and Atty.
Saligumba. He recounted that, in the course of the negotiation,
their team assured the landowners that their landholdings would be
reconveyed to them in the event the Lahug Airport would be
abandoned or if its operation were transferred to the Mactan
Airport. Some landowners opted to sell, while others were of a
different bent owing to the inadequacy of the offered price.

At the end of 1991, or soon after the transfer of the aforesaid lots
to MCIAA, Lahug Airport completely ceased operations, Mactan
Airport having opened to accommodate incoming and outgoing
commercial flights. On the ground, the expropriated lots were never
utilized for the purpose they were taken as no expansion of Lahug
Airport was undertaken. This development prompted the former lot
owners to formally demand from the government that they be
allowed to exercise their promised right to repurchase. The
demands went unheeded. Civil suits followed.
G.R. No. 168812 (MCIAA Petition)
On February 8, 1996, Ricardo L. Inocian and four others (all children
of Isabel Limbaga who originally owned six [6] of the lots
expropriated); and Aletha Suico Magat and seven others,
successors-in-interest of Santiago Suico, the original owner of two
(2) of the condemned lots (collectively, the Inocians), filed before
the RTC in Cebu City a complaint for reconveyance of real
properties and damages against MCIAA. The complaint, docketed
as Civil Case No. CEB-18370, was eventually raffled to Branch 13
of the court.
On September 29, 1997, one Albert Chiongbian (Chiongbian),
alleging to be the owner of Lot Nos. 761-A and 762-A but which the
Inocians were now claiming, moved and was later allowed to
intervene.
During the pre-trial, MCIAA admitted the following facts:
1. That the properties, which are the subject matter of Civil Case
No. CEB-18370, are also the properties involved in Civil Case R1881;
2. That the purpose of the expropriation was for the expansion of
the old Lahug Airport; that the Lahug Airport was not expanded;

PALISOC & SARMIENTO

Inocian testified that he and his mother, Isabel Lambaga, attended

a meeting called by the NAC team of negotiators sometime in 1947
or 1949 where he and the other landowners were given the
assurance that they could repurchase their lands at the same price
in the event the Lahug Airport ceases to operate. He further
testified that they rejected the NACs offer. However, he said that
they no longer appealed the decree of expropriation due to the
repurchase assurance adverted to.
The MCIAA presented Michael Bacarizas (Bacarizas), who started
working for MCIAA as legal assistant in 1996. He testified that, in
the course of doing research work on the lots subject of Civil Case
No. CEB-18370, he discovered that the same lots were covered by
the decision in Civil Case No. R-1881. He also found out that the
said decision did not expressly contain any condition on the matter
of repurchase.
Ruling of the RTC
On October 7, 1998, the RTC rendered a Decision in Civil Case No.
CEB-18370, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered directing defendant Mactan Cebu International Airport
Authority (MCIAA) to reconvey (free from liens and encumbrances)
to plaintiffs Ricardo Inocian, Olimpia E. Esteves, Emilia E. Bacalla,

130 | P a g e

Restituta E. Montana and Raul Inocian Lots No. 744-A, 745-A, 746,
762-A, 747, 761-A and to plaintiffs Aletha Suico Magat, Philip M.
Suico, Doris S. dela Cruz, James M. Suico, Edward M. Suico, Roselyn
S. Lawsin, Rex M. Suico and Kharla Suico-Gutierrez Lots No. 942
and 947, after plaintiffs shall have paid MCIAA the sums indicated
in the decision in Civil Case No. R-1881. Defendant MCIAA is
likewise directed to pay the aforementioned plaintiffs the sum or
P50,000.00 as and for attorneys fees and P10,000.00 for litigation
expenses.
Albert
Chiongbians
intervention
should
hereby DENIED for utter lack of factual basis.

be,

as

it

is

With costs against defendant MCIAA.10

Therefrom, MCIAA went to the CA on appeal, docketed as CA-G.R.
CV No. 64356.
Ruling of the CA
On January 14, 2005, the CA rendered judgment for the Inocians,
declaring them entitled to the reconveyance of the questioned lots
as the successors-in-interest of the late Isabel Limbaga and
Santiago Suico, as the case may be, who were the former
registered owners of the said lots. The decretal portion of the CAs
Decision reads:
WHEREFORE, in view of the foregoing premises, judgment is
hereby rendered by us DISMISSING the appeal filed in this case
and AFFFIRMING the decision rendered by the court a quo on
October 7, 1998 in Civil Case No. CEB-18370.
SO ORDERED.
The CA, citing and reproducing excerpts from Heirs of
Moreno,11 virtually held that the decision in Civil Case No. R-1881
was conditional, stating "that the expropriation of [plaintiffappellees] lots for the proposed expansion of the Lahug Airport
was ordered by the CFI of Cebu under the impression that Lahug
Airport would continue in operation."12 The condition, as may be
deduced from the CFIs decision, was that should MCIAA, or its
precursor agency, discontinue altogether with the operation of
Lahug Airport, then the owners of the lots expropriated may, if so
minded, demand of MCIAA to make good its verbal assurance to
allow the repurchase of the properties. To the CA, this assurance, a
demandable agreement of repurchase by itself, has been
adequately established.

PALISOC & SARMIENTO

On September 21, 2005, the MCIAA filed with Us a petition for

review of the CAs Decision, docketed as G.R. No. 168812.
G.R. No. 168770 (Ouano Petition)
Soon after the MCIAA jettisoned the Lahug Airport expansion
project, informal settlers entered and occupied Lot No. 763-A which,
before its expropriation, belonged to the Ouanos. The Ouanos then
formally asked to be allowed to exercise their right to repurchase
the aforementioned lot, but the MCIAA ignored the demand. On
August 18, 1997, the Ouanos instituted a complaint before the
Cebu City RTC against the Republic and the MCIAA for
reconveyance, docketed as Civil Case No. CEB-20743.
Answering, the Republic and MCIAA averred that the Ouanos no
longer have enforceable rights whatsoever over the condemned Lot
No. 763-A, the decision in Civil Case No. R-1881 not having found
any reversionary condition.
Ruling of the RTC
By a Decision dated November 28, 2000, the RTC, Branch 57 in
Cebu City ruled in favor of the Ouanos, disposing as follows:
WHEREFORE, in the light of the foregoing, the Court hereby
renders judgment in favor of the plaintiffs, Anunciacion Vda. De
Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and Cielo Ouano
Martinez and against the Republic of the Philippines and Mactan
Cebu International Airport Authority (MCIAA) to restore to plaintiffs,
the possession and ownership of their land, Lot No. 763-A upon
payment of the expropriation price to defendants; and
2. Ordering the Register of Deeds to effect the transfer of the
Certificate of Title from defendant Republic of the Philippines on Lot
763-A, canceling TCT No. 52004 in the name of defendant Republic
of the Philippines and to issue a new title on the same lot in the
names of Anunciacion Vda. De Ouano, Mario P. Ouano, Leticia
Ouano Arnaiz and Cielo Ouano Martinez.
No pronouncement as to costs.13
Acting on the motion of the Republic and MCIAA for
reconsideration, however, the RTC, Branch 57 in Cebu City,
presided this time by Judge Enriqueta L. Belarmino, issued, on
December 9, 2002, an Order14 that reversed its earlier decision of
November 28, 2000 and dismissed the Ouanos complaint.
Ruling of the CA

131 | P a g e

In time, the Ouanos interposed an appeal to the CA, docketed as

CA-G.R. CV No. 78027. Eventually, the appellate court rendered a
Decision15 dated September 3, 2004, denying the appeal, thus:
WHEREFORE, premises considered, the Order dated December 9,
2002, of the Regional Trial Court, 7th Judicial Region, Branch 57,
Cebu City, in Civil Case No. CEB-20743, is hereby AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
Explaining its case disposition, the CA stated that the decision in
Civil Case No. R-1881 did not state any condition that Lot No. 763-A
of the Ouanosand all covered lots for that matterwould be
returned to them or that they could repurchase the same property
if it were to be used for purposes other than for the Lahug Airport.
The appellate court also went on to declare the inapplicability of
the Courts pronouncement in MCIAA v. Court of Appeals, RTC,
Branch 9, Cebu City, Melba Limbago, et al.,16 to support the
Ouanos cause, since the affected landowners in that case, unlike
the Ouanos, parted with their property not through expropriation
but via a sale and purchase transaction.
The Ouanos filed a motion for reconsideration of the CAs Decision,
but was denied per the CAs May 26, 2005 Resolution. 17 Hence,
they filed this petition in G.R. No. 168770.
The Issues
G.R. No. 168812
GROUNDS FOR ALLOWANCE OF THE PETITION
l. THE ASSAILED ISSUANCES ILLEGALLY STRIPPED THE REPUBLIC OF
ITS ABSOLUTE AND UNCONDITIONAL TITLE TO THE SUBJECT
EXPROPRIATED PROPERTIES.
ll. THE IMPUNGED DISPOSITIONS INVALIDLY OVERTURNED THIS
HONORABLE COURTS FINAL RULINGS IN FERY V. MUNICIPALITY OF
CABANATUAN, MCIAA V. COURT OF APPEALS AND REYES V.
NATIONAL HOUSING AUTHORITY.
lll. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THIS
HONORABLE COURTS RULING IN MORENO, ALBEIT IT HAS NOT YET
ATTAINED FINALITY.18
G.R. No. 168770
Questions of law presented in this Petition
Whether or not the testimonial evidence of the petitioners proving
the promises, assurances and representations by the airport
officials and lawyers are inadmissbale under the Statute of Frauds.

PALISOC & SARMIENTO

Whether or not under the ruling of this Honorable Court in the heirs
of Moreno Case, and pursuant to the principles enunciated therein,
petitioners herein are entitiled to recover their litigated property.
Reasons for Allowances of this Petition
Respondents did not object during trial to the admissibility of
petitioners testimonial evidence under the Statute of Frauds and
have thus waived such objection and are now barred from raising
the same. In any event, the Statute of Frauds is not applicable
herein. Consequently, petitioners evidence is admissible and
should be duly given weight and credence, as initially held by the
trial court in its original Decision.19
While their respective actions against MCIAA below ended
differently, the Ouanos and the Inocians proffered arguments
presented before this Court run along parallel lines, both asserting
entitlement to recover the litigated property on the strength of the
Courts ruling in Heirs of Moreno. MCIAA has, however, formulated
in its Consolidated Memorandum the key interrelated issues in
these consolidated cases, as follows:
I
WHETHER ABANDONMENT OF THE PUBLIC USE FOR WHICH THE
SUBJECT PROPERTIES WERE EXPROPRIATED ENTITLES PETITIONERS
OUANOS, ET AL. AND RESPONDENTS INOCIAN, ET AL. TO
REACQUIRE THEM.
II
WHETHER PETITIONERS OUANOS, ET AL. AND RESPONDENTS
INOCIAN, ET AL. ARE ENTITLED TO RECONVEYANCE OF THE
SUBJECT PROPERTIES SIMPLY ON THE BASIS OF AN ALLEGED
VERBAL PROMISE OR ASSURANCE OF SOME NAC OFFICIALS THAT
THE SUBJECT PROPERTIES WILL BE RETUNRED IF THE AIRPORT
PROJECT WOULD BE ABANDONED.
The Courts Ruling
The Republic and MCIAAs petition in G.R. No. 168812 is bereft of
merit, while the Ouano petition in G.R. No. 168770 is meritorious.
At the outset, three (3) fairly established factual premises ought to
be emphasized:
First, the MCIAA and/or its predecessor agency had not actually
used the lots subject of the final decree of expropriation in Civil
Case No. R-1881 for the purpose they were originally taken by the
government, i.e., for the expansion and development of Lahug
Airport.

132 | P a g e

Second, the Lahug Airport had been closed and abandoned. A

significant portion of it had, in fact, been purchased by a private
corporation for development as a commercial complex. 20
Third, it has been preponderantly established by evidence that the
NAC, through its team of negotiators, had given assurance to the
affected landowners that they would be entitled to repurchase their
respective lots in the event they are no longer used for airport
purposes.21 "No less than Asterio Uy," the Court noted in Heirs of
Moreno, "one of the members of the CAA Mactan Legal Team, which
interceded for the acquisition of the lots for the Lahug Airports
expansion, affirmed that persistent assurances were given to the
landowners to the effect that as soon as the Lahug Airport is
abandoned or transferred to Mactan, the lot owners would be able
to reacquire their properties."22 In Civil Case No. CEB-20743, Exhibit
"G," the transcript of the deposition23 of Anunciacion vda. de Ouano
covering the assurance made had been formally offered in
evidence and duly considered in the initial decision of the RTC Cebu
City. In Civil Case No. CEB-18370, the trial court, on the basis of
testimonial evidence, and later the CA, recognized the reversionary
rights of the suing former lot owners or their successors in
interest24 and resolved the case accordingly. In point with respect to
the representation and promise of the government to return the
lots taken should the planned airport expansion do not materialize
is what the Court said in Heirs of Moreno, thus:
This is a difficult case calling for a difficult but just solution. To
begin with there exists an undeniable historical narrative that
the predecessors of respondent MCIAA had suggested to the
landowners of the properties covered by the Lahug Airport
expansion scheme that they could repurchase their properties at
the termination of the airports venue. Some acted on this
assurance and sold their properties; other landowners held out and
waited for the exercise of eminent domain to take its course until
finally coming to terms with respondents predecessors that they
would not appeal nor block further judgment of condemnation if the
right of repurchase was extended to them. A handful failed to prove
that they acted on such assurance when they parted with
ownership of their land.25 (Emphasis supplied; citations omitted.)
For perspective, Heirs of Morenolater followed by MCIAA v. Tudtud
(Tudtud)26 and the consolidated cases at baris cast under the
same factual setting and centered on the expropriation of privatelyowned lots for the public purpose of expanding the Lahug Airport
and the alleged promise of reconveyance given by the negotiating
NAC officials to the private lot owners. All the lots being claimed by
the former owners or successors-in-interest of the former owners in

PALISOC & SARMIENTO

the Heirs of Moreno, Tudtud, and the present cases were similarly
adjudged condemned in favor of the Republic in Civil Case No. R1881. All the claimants sought was or is to have the condemned
lots reconveyed to them upon the payment of the condemnation
price since the public purpose of the expropriation was never
met. Indeed, the expropriated lots were never used and were, in
fact, abandoned by the expropriating government agencies.
In all then, the issues and supporting arguments presented by both
sets of petitioners in these consolidated cases have already
previously been passed upon, discussed at length, and practically
peremptorily resolved in Heirs of Moreno and the November
2008 Tudtud ruling. The Ouanos, as petitioners in G.R. No. 168770,
and the Inocians, as respondents in G.R. No. 168812, are similarly
situated as the heirs of Moreno in Heirs of Moreno and Benjamin
Tudtud in Tudtud. Be that as it may, there is no reason why the
ratio decidendi in Heirs of Moreno and Tudtudshould not be made
to apply to petitioners Ouanos and respondents Inocians such that
they shall be entitled to recover their or their predecessors
respective properties under the same manner and arrangement as
the heirs of Moreno and Tudtud. Stare decisis et non quieta
movere (to adhere to precedents, and not to unsettle things which
are established).27
Just like in Tudtud and earlier in Heirs of Moreno, MCIAA would foist
the theory that the judgment of condemnation in Civil Case No. R1881 was without qualification and was unconditional. It would, in
fact, draw attention to thefallo of the expropriation courts decision
to prove that there is nothing in the decision indicating that the
government gave assurance or undertook to reconvey the covered
lots in case the Lahug airport expansion project is aborted.
Elaborating on this angle, MCIAA argues that the claim of the
Ouanos and the Inocians regarding the alleged verbal assurance of
the NAC negotiating team that they can reacquire their
landholdings is barred by the Statute of Frauds. 28
Under the rule on the Statute of Frauds, as expressed in Article
1403 of the Civil Code, a contract for the sale or acquisition of real
property shall be unenforceable unless the same or some note of
the contract be in writing and subscribed by the party charged.
Subject to defined exceptions, evidence of the agreement cannot
be received without the writing, or secondary evidence of its
contents.
MCIAAs invocation of the Statute of Frauds is misplaced primarily
because the statute applies only to executory and not to
completed,
executed,
or
partially
consummated

133 | P a g e

contracts.29 Carbonnel v. Poncio, et al., quoting Chief Justice Moran,

explains the rationale behind this rule, thusly:
x x x "The reason is simple. In executory contracts there is a wide
field for fraud because unless they may be in writing there is no
palpable evidence of the intention of the contracting parties. The
statute has been precisely been enacted to prevent fraud." x x x
However, if a contract has been totally or partially performed, the
exclusion of parol evidence would promote fraud or bad faith, for it
would enable the defendant to keep the benefits already derived by
him from the transaction in litigation, and at the same time, evade
the obligations, responsibilities or liabilities assumed or contracted
by him thereby.30 (Emphasis in the original.)

does not take away the actual usefulness and importance of the
Lahug Airport: it is handling the air traffic of both civilian and
military. From it aircrafts fly to Mindanao and Visayas and pass thru
it on their flights to the North and Manila. Then, no evidence was
adduced to show how soon is the Mactan Airport to be placed in
operation and whether the Lahug Airport will be closed
immediately thereafter. It is up to the other departments of the
Government to determine said matters. The Court cannot
substitute its judgments for those of the said departments or
agencies. In the absence of such showing, the court will presume
that the Lahug Airport will continue to be in operation. 32 (Emphasis
supplied.)

Analyzing the situation of the cases at bar, there can be no serious

objection to the proposition that the agreement package between
the government and the private lot owners was already partially
performed by the government through the acquisition of the lots for
the expansion of the Lahug airport. The parties, however, failed to
accomplish the more important condition in the CFI decision
decreeing the expropriation of the lots litigated upon: the
expansion of the Lahug Airport. The projectthe public purpose
behind the forced property takingwas, in fact, never pursued and,
as a consequence, the lots expropriated were abandoned. Be that
as it may, the two groups of landowners can, in an action to compel
MCIAA to make good its oral undertaking to allow repurchase,
adduce parol evidence to prove the transaction.

We went on to state as follows:

While the trial court in Civil Case No. R-1881 could have simply
acknowledged the presence of public purpose for the exercise of
eminent domain regardless of the survival of the Lahug Airport, the
trial court in its Decision chose not to do so but instead prefixed its
finding of public purpose upon its understanding that Lahug
Airport will continue to be in operation. Verily, these meaningful
statements in the body of the Decision warrant the conclusion that
the expropriated properties would remain to be so until it was
confirmed that Lahug Airport was no longer in operation. This
inference further implies two (2) things: (a) after the Lahug Airport
ceased its undertaking as such and the expropriated lots were not
being used for any airport expansion project, the rights vis--vis the
expropriated lots x x x as between the State and their former
owners, petitioners herein, must be equitably adjusted; and (b) the
foregoing
unmistakable
declarations
in
the
body
of
the Decision should merge with and become an intrinsic part of
the fallo thereof which under the premises is clearly inadequate
since the dispositive portion is not in accord with the findings as
contained in the body thereof.33

At any rate, the objection on the admissibility of evidence on the

basis of the Statute of Frauds may be waived if not timely raised.
Records tend to support the conclusion that MCIAA did not, as the
Ouanos and the Inocians posit, object to the introduction of parol
evidence to prove its commitment to allow the former landowners
to repurchase their respective properties upon the occurrence of
certain events.
In a bid to deny the lot owners the right to repurchase, MCIAA,
citing cases,31 points to the dispositive part of the decision in Civil
Case R-1881 which, as couched, granted the Republic absolute title
to the parcels of land declared expropriated. The MCIAA is correct
about the unconditional tone of the dispositive portion of the
decision, but that actuality would not carry the day for the agency.
Addressing the matter of the otherwise absolute tenor of the CFIs
disposition in Civil Case No. R-1881, the Court, in Heirs of Moreno,
after taking stock of the ensuing portion of the body of the CFIs
decision, said:
As for the public purpose of the expropriation proceeding, it cannot
now be doubted. Although Mactan Airport is being constructed, it

PALISOC & SARMIENTO

Not to be overlooked of course is what the Court said in its

Resolution disposing of MCIAAs motion to reconsider the original
ruling in Heirs of Moreno. In that resolution, We stated that
the fallo of the decision in Civil Case R-1881 should be viewed and
understood in connection with the entire text, which contemplated
a return of the property taken if the airport expansion project were
abandoned. For ease of reference, following is what the Court
wrote:
Moreover, we do not subscribe to the [MCIAAs] contention that
since the possibility of the Lahug Airports closure was actually
considered by the trial court, a stipulation on reversion or
repurchase was so material that it should not have been discounted
by the court a quo in its decision in Civil Case No. R-1881, if, in fact,

134 | P a g e

there was one. We find it proper to cite, once more, this Courts
ruling that the fallo of the decision in Civil Case No. R-1881 must be
read in reference to the other portions of the decision in which it
forms a part. A reading of the Courts judgment must not be
confined to the dispositive portion alone; rather it should be
meaningfully
construed
in
unanimity
with
the ratio
decidendi thereof to grasp the true intent and meaning of a
decision.34
The Court has, to be sure, taken stock of Fery v. Municipality of
Cabanatuan,35 a case MCIAA cites at every possible turn, where the
Court made these observations:
If, for example, land is expropriated for a particular purpose, with
the condition that when that purpose is ended or abandoned the
property shall return to its former owner, then of course, when the
purpose is terminated or abandoned, the former owner reacquires
the property so expropriated. x x x If, upon the contrary, however
the decree of expropriation gives to the entity a fee simple title,
then, of course, the land becomes the absolute property of the
expropriator x x x and in that case the non-user does not have the
effect of defeating the title acquired by the expropriation
proceedings x x x.
Fery notwithstanding, MCIAA cannot really rightfully say that it has
absolute title to the lots decreed expropriated in Civil Case No. R1881. The correct lesson of Fery is captured by what the Court said
in that case, thus: "the government acquires only such rights in
expropriated parcels of land as may be allowed by the character of
its title over the properties." In light of our disposition in Heirs of
Moreno and Tudtud, the statement immediately adverted to means
that in the event the particular public use for which a parcel of land
is expropriated is abandoned, the owner shall not be entitled to
recover or repurchase it as a matter of right, unless such recovery
or repurchase is expressed in or irresistibly deducible from the
condemnation judgment. But as has been determined below, the
decision in Civil Case No. R-1881 enjoined MCIAA, as a condition of
approving expropriation, to allow recovery or repurchase upon
abandonment of the Lahug airport project. To borrow from our
underlying decision in Heirs of Moreno, "[n]o doubt, the return or
repurchase of the condemned properties of petitioners could readily
be justified as the manifest legal effect of consequence of the trial
courts underlying presumption that Lahug Airport will continue to
be in operation when it granted the complaint for eminent domain
and the airport discontinued its activities."36
Providing added support to the Ouanos and the Inocians right to
repurchase is what in Heirs of Moreno was referred to as

PALISOC & SARMIENTO

constructive trust, one that is akin to the implied trust expressed in

Art. 1454 of the Civil Code,37 the purpose of which is to prevent
unjust enrichment.38 In the case at bench, the Ouanos and the
Inocians parted with their respective lots in favor of the MCIAA, the
latter obliging itself to use the realties for the expansion of Lahug
Airport; failing to keep its end of the bargain, MCIAA can be
compelled by the former landowners to reconvey the parcels of
land to them, otherwise, they would be denied the use of their
properties upon a state of affairs that was not conceived nor
contemplated when the expropriation was authorized. In effect, the
government merely held the properties condemned in trust until
the proposed public use or purpose for which the lots were
condemned was actually consummated by the government. Since
the government failed to perform the obligation that is the basis of
the transfer of the property, then the lot owners Ouanos and
Inocians can demand the reconveyance of their old properties after
the payment of the condemnation price.
Constructive trusts are fictions of equity that courts use as devices
to remedy any situation in which the holder of the legal title, MCIAA
in this case, may not, in good conscience, retain the beneficial
interest. We add, however, as in Heirs of Moreno, that the party
seeking the aid of equitythe landowners in this instance, in
establishing the trustmust himself do equity in a manner as the
court may deem just and reasonable.
The Court, in the recent MCIAA v. Lozada, Sr., revisited and
abandoned the Fery ruling that the former owner is not entitled to
reversion of the property even if the public purpose were not
pursued and were abandoned, thus:
On this note, we take this opportunity to revisit our ruling in Fery,
which involved an expropriation suit commenced upon parcels of
land to be used as a site for a public market. Instead of putting up a
public market, respondent Cabanatuan constructed residential
houses for lease on the area. Claiming that the municipality lost its
right to the property taken since it did not pursue its public
purpose, petitioner Juan Fery, the former owner of the lots
expropriated, sought to recover his properties. However, as he had
admitted that, in 1915, respondent Cabanatuan acquired a fee
simple title to the lands in question, judgment was rendered in
favor of the municipality, following American jurisprudence,
particularly City of Fort Wayne v. Lake Shore & M.S. RY.
Co.,McConihay v. Theodore Wright, and Reichling v. Covington
Lumber Co., all uniformly holding that the transfer to a third party
of the expropriated real property, which necessarily resulted in the
abandonment of the particular public purpose for which the
property was taken, is not a ground for the recovery of the same by

135 | P a g e

its previous owner, the title of the expropriating agency being one
of fee simple.

eminent domain, arguing, in a way, against the notion of fee simple

title. The fee does not vest until payment of just compensation. 40

Obviously, Fery was not decided pursuant to our now sacredly held
constitutional right that private property shall not be taken for
public use without just compensation. It is well settled that the
taking of private property by the Governments power of eminent
domain is subject to two mandatory requirements: (1) that it is for
a particular public purpose; and (2) that just compensation be paid
to the property owner. These requirements partake of the nature of
implied conditions that should be complied with to enable the
condemnor to keep the property expropriated.

In esse, expropriation is forced private property taking, the

landowner being really without a ghost of a chance to defeat the
case of the expropriating agency. In other words, in expropriation,
the private owner is deprived of property against his will. Withal,
the mandatory requirement of due process ought to be strictly
followed, such that the state must show, at the minimum, a
genuine need, an exacting public purpose to take private property,
the purpose to be specifically alleged or least reasonably deducible
from the complaint.

More particularly, with respect to the element of public use, the

expropriator should commit to use the property pursuant to the
purpose stated in the petition for expropriation filed, failing which,
it should file another petition for the new purpose. If not, it is then
incumbent upon the expropriator to return the said property to its
private owner, if the latter desires to reacquire the same.
Otherwise, the judgment of expropriation suffers an intrinsic flaw,
as it would lack one indispensable element for the proper exercise
of the power of eminent domain, namely, the particular public
purpose for which the property will be devoted. Accordingly, the
private property owner would be denied due process of law, and
the judgment would violate the property owners right to justice,
fairness, and equity.

Public use, as an eminent domain concept, has now acquired an

expansive meaning to include any use that is of "usefulness, utility,
or advantage, or what is productive of general benefit [of the
public]."41 If the genuine public necessitythe very reason or
condition as it wereallowing, at the first instance, the
expropriation of a private land ceases or disappears, then there is
no more cogent point for the governments retention of the
expropriated land. The same legal situation should hold if the
government devotes the property to another public use very much
different from the original or deviates from the declared purpose to
benefit another private person. It has been said that the direct use
by the state of its power to oblige landowners to renounce their
productive possession to another citizen, who will use it
predominantly for that citizens own private gain, is offensive to our
laws.42

In light of these premises, we now expressly hold that the taking of

private property, consequent to the Governments exercise of its
power of eminent domain, is always subject to the condition that
the property be devoted to the specific public purpose for which it
was taken. Corollarily, if this particular purpose or intent is not
initiated or not at all pursued, and is peremptorily abandoned, then
the former owners, if they so desire, may seek the reversion of the
property, subject to the return of the amount of just compensation
received. In such a case, the exercise of the power of eminent
domain has become improper for lack of the required factual
justification.39(Emphasis supplied.)
Clinging to Fery, specifically the fee simple concept underpinning it,
is no longer compelling, considering the ensuing inequity such
application entails. Too, the Court resolved Fery not under the cover
of any of the Philippine Constitutions, each decreeing that private
property shall not be taken for public use without just
compensation. The twin elements of just compensation and public
purpose are, by themselves, direct limitations to the exercise of

PALISOC & SARMIENTO

A condemnor should commit to use the property pursuant to the

purpose stated in the petition for expropriation, failing which it
should file another petition for the new purpose. If not, then it
behooves the condemnor to return the said property to its private
owner, if the latter so desires. The government cannot plausibly
keep the property it expropriated in any manner it pleases and, in
the process, dishonor the judgment of expropriation. This is not in
keeping with the idea of fair play,
The notion, therefore, that the government, via expropriation
proceedings, acquires unrestricted ownership over or a fee simple
title to the covered land, is no longer tenable. We suggested as
much in Heirs of Moreno and inTudtud and more recently in Lozada,
Sr. Expropriated lands should be differentiated from a piece of land,
ownership of which was absolutely transferred by way of an
unconditional purchase and sale contract freely entered by two
parties, one without obligation to buy and the other without the
duty to sell. In that case, the fee simple concept really comes into

136 | P a g e

play. There is really no occasion to apply the "fee simple concept" if

the transfer is conditional. The taking of a private land in
expropriation proceedings is always conditioned on its continued
devotion to its public purpose. As a necessary corollary, once the
purpose is terminated or peremptorily abandoned, then the former
owner, if he so desires, may seek its reversion, subject of course to
the return, at the very least, of the just compensation received.
To be compelled to renounce dominion over a piece of land is, in
itself, an already bitter pill to swallow for the owner. But to be
asked to sacrifice for the common good and yield ownership to the
government which reneges on its assurance that the private
property shall be for a public purpose may be too much. But it
would be worse if the power of eminent domain were deliberately
used as a subterfuge to benefit another with influence and power in
the political process, including development firms. The mischief
thus depicted is not at all far-fetched with the continued application
of Fery. Even as the Court deliberates on these consolidated cases,
there is an uncontroverted allegation that the MCIAA is poised to
sell, if it has not yet sold, the areas in question to Cebu Property
Ventures, Inc. This provides an added dimension to abandon Fery.
Given the foregoing disquisitions, equity and justice demand the
reconveyance by MCIAA of the litigated lands in question to the
Ouanos and Inocians. In the same token, justice and fair play also
dictate that the Ouanos and Inocian return to MCIAA what they
received as just compensation for the expropriation of their
respective properties plus legal interest to be computed from
default, which in this case should run from the time MCIAA
complies with the reconveyance obligation. 43 They must likewise
pay MCIAA the necessary expenses it might have incurred in
sustaining their respective lots and the monetary value of its
services in managing the lots in question to the extent that they, as
private owners, were benefited thereby.
In accordance with Art. 1187 of the Civil Code on mutual
compensation, MCIAA may keep whatever income or fruits it may
have obtained from the parcels of land expropriated. In turn, the
Ouanos and Inocians need not require the accounting of interests
earned by the amounts they received as just compensation. 44
Following Art. 1189 of the Civil Code providing that "[i]f the thing is
improved by its nature, or by time, the improvement shall inure to
the benefit of the creditor x x x," the Ouanos and Inocians do not
have to settle the appreciation of the values of their respective lots
as part of the reconveyance process, since the value increase is
merely the natural effect of nature and time.

PALISOC & SARMIENTO

Finally, We delete the award of PhP 50,000 and PhP 10,000, as

attorneys fees and litigation expenses, respectively, made in favor
of the Inocians by the Cebu City RTC in its judgment in Civil Case
No. CEB-18370, as later affirmed by the CA. As a matter of sound
policy, no premium should be set on the right to litigate where
there is no doubt about the bona fides of the exercise of such
right,45 as here, albeit the decision of MCIAA to resist the former
landowners claim eventually turned out to be untenable.
WHEREFORE, the petition in G.R. No. 168770 is GRANTED.
Accordingly, the CA Decision dated September 3, 2004 in CA-G.R.
CV No. 78027 is REVERSED and SET ASIDE. Mactan-Cebu
International Airport Authority is ordered to reconvey subject Lot
No. 763-A to petitioners Anunciacion vda. de Ouano, Mario P.
Ouano, Leticia Ouano Arnaiz, and Cielo Ouano Martinez. The
Register of Deeds of Cebu City is ordered to effect the necessary
cancellation of title and transfer it in the name of the petitioners
within fifteen (15) days from finality of judgment.
The petition of the Mactan-Cebu International Airport Authority in
G.R. No. 168812 is DENIED, and the CAs Decision and Resolution
dated January 14, 2005 and June 29, 2005, respectively, in CA-G.R.
CV No. 64356 are AFFIRMED, except insofar as they awarded
attorneys fees and litigation expenses that are hereby DELETED.
Accordingly, Mactan-Cebu International Airport Authority is ordered
to reconvey to respondents Ricardo L. Inocian, Olympia E. Esteves,
Emilia E. Bacalla, Restituta E. Montana, and Raul L. Inocian the
litigated Lot Nos. 744-A, 745-A, 746, 762-A, 747, and 761-A; and to
respondents Aletha Suico Magat, Philip M. Suico, Dolores S. dela
Cruz, James M. Suico, Edward M. Suico, Roselyn S. Lawsin, Rex M.
Suico, and Kharla Suico-Gutierrez the litigated Lot Nos. 942 and
947. The Register of Deeds of Cebu City is ordered to effect the
necessary cancellation of title and transfer it in the name of
respondents within a period of fifteen (15) days from finality of
judgment.
The foregoing dispositions are subject to QUALIFICATIONS, to
apply to these consolidated petitions, when appropriate, as follows:
(1) Petitioners Ouano, et al. in G.R. No. 168770 and respondents
Ricardo L Inocian, et al. in G.R. No. 168812 are ordered to return to
the MCIAA the just compensation they or their predecessors-ininterest received for the expropriation of their respective lots as
stated in Civil Case No. R-1881, within a period of sixty (60) days
from finality of judgment;

137 | P a g e

(2) The MCIAA shall be entitled to RETAIN whatever fruits and

income it may have obtained from the subject expropriated lots
without any obligation to refund the same to the lot owners; and
(3) Petitioners Ouano, et al. in G.R. No. 168770 and respondents
Ricardo L. Inocian, et al. in G.R. No. 168812 shallRETAIN whatever
interests the amounts they received as just compensation may
have earned in the meantime without any obligation to refund the
same to MCIAA.
SO ORDERED.

PALISOC & SARMIENTO

138 | P a g e

REPUBLIC OF THE PHILIPPINES, GENERAL ROMEO ZULUETA,

COMMODORE EDGARDO GALEOS, ANTONIO CABALUNA,
DOROTEO MANTOS & FLORENCIO BELOTINDOS, Petitioners,
versus VICENTE G. LIM, Respondent.
G.R. No. 161656 | 2005-06-29
RESOLUTION
SANDOVAL-GUTIERREZ, J.:
Justice is the first virtue of social institutions.[1] When the state
wields its power of eminent domain, there arises a correlative
obligation on its part to pay the owner of the expropriated property
a
just compensation. If it fails, there is a clear case of injustice that
must be redressed. In the present case, fifty-seven (57) years have
lapsed from the time the Decision in the subject expropriation
proceedings became final, but still the Republic of the Philippines,
herein petitioner, has not compensated the owner of the property.
To tolerate such prolonged inaction on its part is to encourage
distrust and resentment among our people - the very vices that
corrode the ties of civility and tempt men to act in ways they would
otherwise shun.
A revisit of the pertinent facts in the instant case is imperative.
On September 5, 1938, the Republic of the Philippines (Republic)
instituted a special civil action for expropriation with the Court of
First Instance (CFI) of Cebu, docketed as Civil Case No. 781,
involving Lots 932 and 939 of the Banilad Friar Land Estate, Lahug,
Cebu City, for the purpose of establishing a military reservation for
the Philippine Army. Lot 932 was registered in the name of Gervasia
Denzon under Transfer Certificate of Title (TCT) No. 14921 with an
area of 25,137 square meters, while Lot 939 was in the name of
Eulalia Denzon and covered by TCT No. 12560 consisting of 13,164
square meters.
After depositing P9,500.00 with the Philippine National Bank,
pursuant to the Order of the CFI dated October 19, 1938, the
Republic took possession of the lots. Thereafter, or on May 14,
1940, the CFI rendered its Decision ordering the Republic to pay the
Denzons the sum of P4,062.10 as just compensation.
The Denzons interposed an appeal to the Court of Appeals but it
was dismissed on March 11, 1948. An entry of judgment was made
on April 5, 1948.

PALISOC & SARMIENTO

In 1950, Jose Galeos, one of the heirs of the Denzons, filed with the
National Airports Corporation a claim for rentals for the two lots,
but it "denied knowledge of the matter." Another heir, Nestor
Belocura, brought the claim to the Office of then President Carlos
Garcia who wrote the Civil Aeronautics Administration and the
Secretary of National Defense to expedite action on said claim. On
September 6, 1961, Lt. Manuel Cabal rejected the claim but
expressed willingness to pay the appraised value of the lots within
a reasonable time.
For failure of the Republic to pay for the lots, on September 20,
1961, the Denzons' successors-in-interest, Francisca GaleosValdehueza and Josefina Galeos-Panerio,[2] filed with the same CFI
an action for recovery of possession with damages against the
Republic and officers of the Armed Forces of the Philippines in
possession of the property. The case was docketed as Civil Case No.
R-7208.
In the interim or on November 9, 1961, TCT Nos. 23934 and 23935
covering Lots 932 and 939 were issued in the names of Francisca
Valdehueza and Josefina Panerio, respectively. Annotated thereon
was the phrase "subject to the priority of the National Airports
Corporation to acquire said parcels of land, Lots 932 and 939 upon
previous payment of a reasonable market value."
On July 31, 1962, the CFI promulgated its Decision in favor of
Valdehueza and Panerio, holding that they are the owners and have
retained their right as such over Lots 932 and 939 because of the
Republic's failure to pay the amount of P4,062.10, adjudged in the
expropriation proceedings. However, in view of the annotation on
their land titles, they were ordered to execute a deed of sale in
favor of the Republic. In view of "the differences in money value
from 1940 up to the present," the court adjusted the market value
at P16,248.40, to be paid with 6% interest per annum from April 5,
1948, date of entry in the expropriation proceedings, until full
payment.
After their motion for reconsideration was denied, Valdehueza and
Panerio appealed from the CFI Decision, in view of the amount in
controversy, directly to this Court. The case was docketed as No. L21032.[3] On May 19, 1966, this Court rendered its Decision
affirming the CFI Decision. It held that Valdehueza and Panerio are
still the registered owners of Lots 932 and 939, there having been
no payment of just compensation by the Republic. Apparently, this
Court found nothing in the records to show that the Republic paid
the owners or their successors-in-interest according to the CFI

139 | P a g e

decision. While it deposited the amount of P9,500,00, and said

deposit was allegedly disbursed, however, the payees could not be
ascertained.
Notwithstanding the above finding, this Court still ruled that
Valdehueza and Panerio are not entitled to recover possession of
the lots but may only demand the payment of their fair market
value, ratiocinating as follows:
"Appellants would contend that: (1) possession of Lots 932 and 939
should be restored to them as owners of the same;(2) the Republic
should be ordered to pay rentals for the use of said lots, plus
attorney's fees; and (3) the court a quo in the present suit had no
power to fix the value of the lots and order the execution of the
deed of sale after payment.
It is true that plaintiffs are still the registered owners of the land,
there not having been a transfer of said lots in favor of the
Government. The records do not show that the Government paid
the owners or their successors-in-interest according to the 1940 CFI
decision although, as stated, P9,500.00 was deposited by it, and
said deposit had been disbursed. With the records lost, however, it
cannot be known who received the money (Exh. 14 says: 'It is
further certified that the corresponding Vouchers and pertinent
Journal and Cash Book were destroyed during the last World War,
and therefore the names of the payees concerned cannot be
ascertained.') And the Government now admits that there is no
available record showing that payment for the value of the lots in
question has been made(Stipulation of Facts, par. 9, Rec. on Appeal,
p. 28).
The points in dispute are whether such payment can still be made
and, if so, in what amount. Said lots have been the subject of
expropriation proceedings. By final and executory judgment in said
proceedings, they were condemned for public use, as part of an
airport, and ordered sold to the Government. In fact, the
abovementioned title certificates secured by plaintiffs over said lots
contained annotations of the right of the National Airports
Corporation (now CAA) to pay for and acquire them. It follows that
both by virtue of the judgment, long final, in the expropriation suit,
as well as the annotations upon their title certificates, plaintiffs are
not entitled to recover possession of their expropriated lots - which
are still devoted to the public use for which they were expropriated
- but only to demand the fair market value of the same."
Meanwhile, in 1964, Valdehueza and Panerio mortgaged Lot 932
to Vicente Lim, herein respondent,[4] as security for their loans. For
their failure to pay Lim despite demand, he had the mortgage

PALISOC & SARMIENTO

foreclosed in 1976. Thus, TCT No. 23934 was cancelled, and in lieu
thereof, TCT No. 63894 was issued in his name.
On August 20, 1992, respondent Lim filed a complaint for quieting
of title with the Regional Trial Court (RTC), Branch 10, Cebu City,
against General Romeo Zulueta, as Commander of the Armed
Forces of the Philippines, Commodore Edgardo Galeos, as
Commander of Naval District V of the Philippine Navy, Antonio
Cabaluna, Doroteo Mantos and Florencio Belotindos, herein
petitioners. Subsequently, he amended the complaint to implead
the Republic.
On May 4, 2001, the RTC rendered a decision in favor of
respondent, thus:
"WHEREFORE, judgment is hereby rendered in favor of plaintiff
Vicente
Lim
and
against
all
defendants,
public
and
private, declaring plaintiff Vicente Lim the absolute and exclusive
owner of Lot No. 932 with all the rights of an absolute owner
including the right to possession. The monetary claims in the
complaint and in the counter claims contained in the answer of
defendants are ordered Dismissed.
Petitioners elevated the case to the Court of Appeals, docketed
therein as CA-G.R. CV No. 72915. In its Decision[5] dated
September 18, 2003, the Appellate Court sustained the RTC
Decision, thus:
"Obviously, defendant-appellant Republic evaded its duty of paying
what was due to the landowners. The expropriation proceedings
had already become final in the late 1940's and yet, up to now, or
more than fifty (50) years after, the Republic had not yet paid the
compensation fixed by the court while continuously reaping
benefits from the expropriated property to the prejudice of the
landowner. x x x. This is contrary to the rules of fair play because
the concept of just compensation embraces not only the correct
determination of the amount to be paid to the owners of the land,
but also the payment for the land within a reasonable time from its
taking. Without prompt payment, compensation cannot be
considered "just" for the property owner is made to suffer the
consequence of being immediately deprived of his land while being
made to wait for a decade or more, in this case more than 50
years, before actually receiving the amount necessary to cope with
the loss. To allow the taking of the landowners' properties, and in
the meantime leave them empty-handed by withholding payment
of compensation while the government speculates on whether or
not it will pursue expropriation, or worse, for government to

140 | P a g e

subsequently decide to abandon the property and return it to the

landowners, is undoubtedly an oppressive exercise of eminent
domain that must never be sanctioned. (Land Bank of the
Philippines vs. Court of Appeals, 258 SCRA 404).
xxxxxx
An action to quiet title is a common law remedy for the removal of
any cloud or doubt or uncertainty on the title to real property. It is
essential for the plaintiff or complainant to have a legal or
equitable title or interest in the real property, which is the subject
matter of the action. Also the deed, claim, encumbrance or
proceeding that is being alleged as cloud on plaintiff's title must be
shown to be in fact invalid or inoperative despite its prima facie
appearance of validity or legal efficacy (Robles vs. Court of
Appeals, 328 SCRA 97). In view of the foregoing discussion, clearly,
the claim of defendant-appellant Republic constitutes a cloud,
doubt or uncertainty on the title of plaintiff-appellee Vicente Lim
that can be removed by an action to quiet title.
WHEREFORE, in view of the foregoing, and finding no reversible
error in the appealed May 4, 2001 Decision of Branch 9, Regional
Trial Court of Cebu City, in Civil Case No. CEB-12701, the said
decision is UPHELD AND AFFIRMED. Accordingly, the appeal
is DISMISSED for lack of merit."
Undaunted, petitioners, through the Office of the Solicitor General,
filed with this Court a petition for review on certiorarialleging that
the Republic has remained the owner of Lot 932 as held by this
Court in Valdehueza vs. Republic.[6]
In our Resolution dated March 1, 2004, we denied the petition
outright on the ground that the Court of Appeals did not commit a
reversible error. Petitioners filed an urgent motion for
reconsideration but we denied the same with finality in our
Resolution of May 17, 2004.
On May 18, 2004, respondent filed an ex-parte motion for the
issuance of an entry of judgment. We only noted the motion in our
Resolution of July 12, 2004.
On July 7, 2004, petitioners filed an urgent plea/motion for
clarification, which is actually a second motion for reconsideration.
Thus, in our Resolution of September 6, 2004, we simply noted
without action the motion considering that the instant petition was
already denied with finality in our Resolution of May 17, 2004.

PALISOC & SARMIENTO

On October 29, 2004, petitioners filed a very urgent motion for

leave to file a motion for reconsideration of our Resolution dated
September 6, 2004 (with prayer to refer the case to the En Banc).
They maintain that the Republic's right of ownership has been
settled in Valdehueza.
The basic issue for our resolution is whether the Republic has
retained ownership of Lot 932 despite its failure to pay
respondent's predecessors-in-interest the just compensation
therefor pursuant to the judgment of the CFI rendered as early as
May 14, 1940.
Initially, we must rule on the procedural obstacle.
While we commend the Republic for the zeal with which it pursues
the present case, we reiterate that its urgent motion for
clarification filed on July 7, 2004 is actually a second motion for
reconsideration. This motion is prohibited under Section 2, Rule 52,
of the 1997 Rules of Civil Procedure, as amended, which provides:
"Sec. 2. Second motion for reconsideration. - No second motion for
reconsideration of a judgment or final resolution by the same party
shall be entertained."
Consequently, as mentioned earlier, we simply noted without
action the motion since petitioners' petition was already denied
with finality.
Considering the Republic's urgent and serious insistence that it is
still the owner of Lot 932 and in the interest of justice, we take
another hard look at the controversial issue in order to determine
the veracity of petitioner's stance.
One of the basic principles enshrined in our Constitution is that no
person shall be deprived of his private property without due
process of law; and in expropriation cases, an essential element of
due process is that there must be just compensation whenever
private property is taken for public use.[7] Accordingly, Section 9,
Article III, of our Constitution mandates: "Private property shall not
be taken for public use without just compensation."
The Republic disregarded the foregoing provision when it failed and
refused to pay respondent's predecessors-in-interest the just
compensation for Lots 932 and 939. The length of time and the
manner with which it evaded payment demonstrate its arbitrary
high-handedness and confiscatory attitude. The final judgment in
the expropriation proceedings (Civil Case No. 781) was entered

141 | P a g e

on April 5, 1948. More than half of a century has passed, yet, to this
day, the landowner, now respondent, has remained empty-handed.
Undoubtedly, over 50 years of delayed payment cannot, in any
way, be viewed as fair. This is more so when such delay is
accompanied by bureaucratic hassles. Apparent fromValdehueza is
the fact that respondent's predecessors-in-interest were given a
"run around" by the Republic's officials and agents. In 1950, despite
the benefits it derived from the use of the two lots, the National
Airports Corporation denied knowledge of the claim of respondent's
predecessors-in-interest. Even President Garcia, who sent a letter to
the Civil Aeronautics Administration and the Secretary of National
Defense to expedite the payment, failed in granting relief to them.
And, on September 6, 1961, while the Chief of Staff of the Armed
Forces expressed willingness to pay the appraised value of the lots,
nothing happened.
The Court of Appeals is correct in saying that Republic's delay is
contrary to the rules of fair play, as "just compensation embraces
not only the correct determination of the amount to be paid to the
owners of the land, but also the payment for the land within a
reasonable time from its taking. Without prompt payment,
compensation cannot be considered 'just.'" In jurisdictions similar
to ours, where an entry to the expropriated property precedes the
payment of compensation, it has been held that if the
compensation is not paid in a reasonable time, the party may be
treated as a trespasser ab initio.[8]
Corollarily, in Provincial Government of Sorsogon vs. Vda. De
Villaroya,[9] similar to the present case, this Court expressed its
disgust over the government's vexatious delay in the payment of
just compensation, thus:
"The petitioners have been waiting for more than thirty years to be
paid for their land which was taken for use as a public high
school. As a matter of fair procedure, it is the duty of the
Government, whenever it takes property from private persons
against their will, to supply all required documentation and
facilitate payment of just compensation.The imposition of
unreasonable requirements and vexatious delays before effecting
payment is not only galling and arbitrary but a rich source of
discontent with government. There should be some kind of swift
and effective recourse against unfeeling and uncaring acts of
middle or lower level bureaucrats."
We feel the same way in the instant case.

PALISOC & SARMIENTO

More than anything else, however, it is the obstinacy of the

Republic that prompted us to dismiss its petition outright. As early
as May 19, 1966, in Valdehueza, this Court mandated the Republic
to pay respondent's predecessors-in-interest the sum of P16,248.40
as "reasonable market value of the two lots in question."
Unfortunately, it did not comply and allowed several decades to
pass without obeying this Court's mandate. Such prolonged
obstinacy bespeaks of lack of respect to private rights and to the
rule of law, which we cannot countenance. It is tantamount to
confiscation of private property. While it is true that all private
properties are subject to the need of government, and the
government may take them whenever the necessity or the
exigency of the occasion demands, however, the Constitution
guarantees that when this governmental right of expropriation is
exercised, it shall be attended by compensation.[10] From the
taking of private property by the government under the power of
eminent domain, there arises an implied promise to compensate
the owner for his loss.[11]
Significantly, the above-mentioned provision of Section 9, Article III
of the Constitution is not a grant but a limitationof power. This
limiting function is in keeping with the philosophy of the Bill of
Rights against the arbitrary exercise of governmental powers to the
detriment of the individual's rights. Given this function, the
provision should therefore bestrictly interpreted against the
expropriator, the government, and liberally in favor of the property
owner.[12]
Ironically, in opposing respondent's claim, the Republic is invoking
this Court's Decision in Valdehueza, a Decision it utterly
defied. How could the Republic acquire ownership over Lot 932
when it has not paid its owner the just compensation, required by
law, for more than 50 years? The recognized rule is that title to the
property expropriated shall pass from the owner to the expropriator
only upon full payment of the just compensation. Jurisprudence on
this settled principle is consistent both here and in other
democratic jurisdictions. In Association of Small Landowners in the
Philippines, Inc. et al., vs. Secretary of Agrarian Reform,[13] thus:
"Title to property which is the subject of condemnation proceedings
does not vest the condemnor until the judgment fixing just
compensation is entered and paid, but the condemnor's title relates
back to the date on which the petition under the Eminent Domain
Act, or the commissioner's report under the Local Improvement Act,
is filed.
x x x Although the right to appropriate and use land taken for a
canal is complete at the time of entry, title to the property taken

142 | P a g e

remains in the owner until payment is actually made. (Emphasis

supplied.)
In Kennedy v. Indianapolis, the US Supreme Court cited several
cases holding that title to property does not pass to the condemnor
until just compensation had actually been made. In fact, the
decisions appear to be uniform to this effect. As early as 1838,
in Rubottom v. McLure, it was held that 'actual payment to the
owner of the condemned property was a condition precedent to the
investment of the title to the property in the State' albeit 'not to the
appropriation of it to public use.' In Rexford v. Knight, the Court of
Appeals of New York said that the construction upon the statutes
was that the fee did not vest in the State until the payment of the
compensation although the authority to enter upon and appropriate
the land was complete prior to the payment. Kennedy further said
that 'both on principle and authority the rule is . . . that the right to
enter on and use the property is complete, as soon as the property
is actually appropriated under the authority of law for a public use,
but that the title does not pass from the owner without his consent,
until just compensation has been made to him."
Our own Supreme Court has held in Visayan Refining Co. v. Camus
and Paredes, that:
'If the laws which we have exhibited or cited in the preceding
discussion are attentively examined it will be apparent that the
method of expropriation adopted in this jurisdiction is such as to
afford absolute reassurance that no piece of land can be finally and
irrevocably taken from an unwilling owner until compensation is
paid...'"(Emphasis supplied.)
Clearly, without full payment of just compensation, there can be no
transfer of title from the landowner to the expropriator. Otherwise
stated, the Republic's acquisition of ownership is conditioned upon
the full payment of just compensation within a reasonable time.
[14]
Significantly, in Municipality of Bian v. Garcia[15] this Court
ruledthat the expropriation of lands consists of two stages, to wit:
" x x x The first is concerned with the determination of the
authority of the plaintiff to exercise the power of eminent domain
and the propriety of its exercise in the context of the facts involved
in the suit. It ends with an order, if not of dismissal of the action, "of
condemnation declaring that the plaintiff has a lawful right to take
the property sought to be condemned, for the public use or purpose

PALISOC & SARMIENTO

described in the complaint, upon the payment of just compensation

to be determined as of the date of the filing of the complaint" x x x.
The second phase of the eminent domain action is concerned with
the determination by the court of "the just compensation for the
property sought to be taken." This is done by the court with the
assistance of not more than three (3) commissioners. x x x.
It is only upon the completion of these two stages that
expropriation is said to have been completed. In Republic v. Salem
Investment Corporation,[16] we ruled that, "the process is not
completed until payment of just compensation." Thus, here, the
failure of the Republic to pay respondent and his predecessors-ininterest for a period of 57 years rendered the expropriation process
incomplete.
The Republic now argues that under Valdehueza, respondent is not
entitled to recover possession of Lot 932 but only to demand
payment of its fair market value. Of course, we are aware of the
doctrine that "non-payment of just compensation (in an
expropriation proceedings) does not entitle the private landowners
to recover possession of the expropriated lots." This is our ruling in
the recent cases of Republic of the Philippines vs. Court of Appeals,
et al.,[17] and Reyes vs. National Housing Authority.[18] However,
the facts of the present case do not justify its application. It bears
stressing that the Republic was ordered to pay just
compensation twice, the first was in the expropriation proceedings
and the second, in Valdehueza. Fifty-seven (57) years have passed
since then. We cannot but construe the Republic's failure to pay
just compensation as a deliberate refusal on its part. Under such
circumstance,recovery of possession is in order. In several
jurisdictions, the courts held that recovery of possession may be
had when property has been wrongfully taken or is wrongfully
retained by one claiming to act under the power of eminent
domain[19] or where a rightful entry is made and the party
condemning refuses to pay the compensation which has been
assessed or agreed upon;[20] or fails or refuses to have the
compensation assessed and paid.[21]
The Republic also contends that where there have been
constructions being used by the military, as in this case, public
interest demands that the present suit should not be sustained.
It must be emphasized that an individual cannot be deprived of his
property for the public convenience.[22] InAssociation of Small
Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform,[23] we ruled:

143 | P a g e

"One of the basic principles of the democratic system is that where

the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with
the Constitution. Mere expediency will not excuse constitutional
shortcuts.There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of one
even as against the rest of the nation who would deny him that
right.
The right covers the person's life, his liberty and his property under
Section 1 of Article III of the Constitution. With regard to his
property, the owner enjoys the added protection of Section 9, which
reaffirms the familiar rule that private property shall not be taken
for public use without just compensation."
The Republic's assertion that the defense of the State will be in
grave danger if we shall order the reversion of Lot 932 to
respondent is an overstatement. First, Lot 932 had ceased to
operate as an airport. What remains in the site is just the National
Historical Institute's marking stating that Lot 932 is the "former
location of Lahug Airport." And second, there are only thirteen (13)
structures located on Lot 932, eight (8) of which are residence
apartments of military personnel. Only two (2) buildings are
actually used as training centers. Thus, practically speaking, the
reversion of Lot 932 to respondent will only affect a handful of
military personnel. It will not result to "irreparable damage" or
"damage beyond pecuniary estimation," as what the Republic
vehemently claims.
We thus rule that the special circumstances prevailing in this case
entitle respondent to recover possession of the expropriated lot
from the Republic. Unless this form of swift and effective relief is
granted to him, the grave injustice committed against his
predecessors-in-interest, though no fault or negligence on their
part, will be perpetuated. Let this case, therefore, serve as a wakeup call to the Republic that in the exercise of its power of eminent
domain, necessarily in derogation of private rights, it must comply
with the Constitutional limitations. This Court, as the guardian of
the people's right, will not stand still in the face of the Republic's
oppressive and confiscatory taking of private property, as in this
case.

PALISOC & SARMIENTO

At this point, it may be argued that respondent Vicente Lim acted in

bad faith in entering into a contract of mortgage with Valdehueza
and Panerio despite the clear annotation in TCT No. 23934 that Lot
932 is "subject to the priority of the National Airports Corporation
[to acquire said parcels of land] x x x upon previous payment of a
reasonable market value."
The issue of whether or not respondent acted in bad faith is
immaterial considering that the Republic did not complete the
expropriation process. In short, it failed to perfect its title over Lot
932 by its failure to pay just compensation. The issue of bad faith
would have assumed relevance if the Republic actually acquired
title over Lot 932. In such a case, even if respondent's title was
registered first, it would be the Republic's title or right of ownership
that shall be upheld.But now, assuming that respondent was in bad
faith, can such fact vest upon the Republic a better title over Lot
932? We believe not. This is because in the first place, the Republic
has no title to speak of.
At any rate, assuming that respondent had indeed knowledge of
the annotation, still nothing would have prevented him from
entering into a mortgage contract involving Lot 932 while the
expropriation proceeding was pending. Any person who deals with
a property subject of an expropriation does so at his own risk,
taking into account the ultimate possibility of losing the property in
favor of the government. Here, the annotation merely served as a
caveat that the Republic had a preferential right to acquire Lot
932 upon its payment of a "reasonable market value." It did not
proscribe Valdehueza and Panerio from exercising their rights of
ownership including their right to mortgage or even to dispose of
their property. In Republic vs. Salem Investment Corporation,[24]
we recognized the owner's absolute right over his property pending
completion of the expropriation proceeding, thus:
"It is only upon the completion of these two stages that
expropriation is said to have been completed. Moreover, it is only
upon payment of just compensation that title over the property
passes to the government. Therefore, until the action for
expropriation has been completed and terminated, ownership over
the property being expropriated remains with the registered
owner. Consequently, the latter can exercise all rights pertaining to
an owner, including the right to dispose of his property subject to
the power of the State ultimately to acquire it through
expropriation.
It bears emphasis that when Valdehueza and Panerio mortgaged
Lot 932 to respondent in 1964, they were still the owners thereof
and their title had not yet passed to the petitioner Republic. In fact,

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it never did. Such title or ownership was rendered conclusive when

we categorically ruled in Valdehueza that: "It is true that plaintiffs
are still the registered owners of the land, there not having been a
transfer of said lots in favor of the Government."
For respondent's part, it is reasonable to conclude that he entered
into the contract of mortgage with Valdehueza and Panerio fully
aware of the extent of his right as a mortgagee. A mortgage is
merely an accessory contract intended to secure the performance
of the principal obligation. One of its characteristics is that it
is inseparable from the property. It adheres to the property
regardless of who its owner may subsequently be.[25] Respondent
must have known that even if Lot 932 is ultimately expropriated by
the Republic, still, his right as a mortgagee is protected. In this
regard, Article 2127 of the Civil Code provides:

The Republic's motion for reconsideration of our Resolution dated

March 1, 2004 is DENIED with FINALITY. No furtherpleadings will be
allowed.
Let an entry of judgment be made in this case.
SO ORDERED.

"Art. 2127. The mortgage extends to the natural accessions, to the

improvements, growing fruits, and the rents or income not yet
received when the obligation becomes due, and to the amount of
the indemnity granted or owing to the proprietor from the insurers
of the property mortgaged, or in virtue of expropriation for public
use, with the declarations, amplifications, and limitations
established by law, whether the estate remains in the possession of
the mortgagor or it passes in the hands of a third person.
In summation, while the prevailing doctrine is that "the nonpayment of just compensation does not entitle the private
landowner to recover possession of the expropriated lots,[26]
however, in cases where the government failed to pay just
compensation within five (5)[27] years from the finality of the
judgment in the expropriation proceedings, the owners concerned
shall have the right to recover possession of their property. This is
in consonance with the principle that "the government cannot keep
the property and dishonor the judgment."[28] To be sure, the fiveyear period limitation will encourage the government to pay just
compensation punctually. This is in keeping with justice and equity.
After all, it is the duty of the government, whenever it takes
property from private persons against their will, to facilitate the
payment of just compensation. In Cosculluela v. Court of Appeals,
[29] we defined just compensation as not only the correct
determination of the amount to be paid to the property owner but
also the payment of the property within a reasonable time. Without
prompt payment, compensation cannot be considered "just."
WHEREFORE, the assailed Decision of the Court of Appeals in CAG.R. CV No. 72915 is AFFIRMED in toto.

PALISOC & SARMIENTO

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SANTIAGO ESLABAN, JR., in his capacity as Project Manager

of the National Irrigation Administration, petitioner, vs.
CLARITA VDA. DE ONORIO, respondent.
G.R. No. 146062 | 2001-06-28
DECISION
MENDOZA, J.:
This is a petition for review of the decision[1] of the Court of
Appeals which affirmed the decision of the Regional Trial Court,
Branch 26, Surallah, South Cotabato, ordering the National
Irrigation Administration (NIA for brevity) to pay respondent the
amount of P107,517.60 as just compensation for the taking of the
latter's property.
The facts are as follows:
Respondent Clarita Vda. de Enorio is the owner of a lot in Barangay
M. Roxas, Sto. Nio, South Cotabato with an area of 39,512 square
meters. The lot, known as Lot 1210-A-Pad-11-000586, is covered by
TCT No. T-22121 of the Registry of Deeds, South Cotabato. On
October 6, 1981, Santiago Eslaban, Jr., Project Manager of the NIA,
approved the construction of the main irrigation canal of the NIA on
the said lot, affecting a 24,660 square meter portion thereof.
Respondent's husband agreed to the construction of the NIA canal
provided that they be paid by the government for the area taken
after the processing of documents by the Commission on Audit.
Sometime in 1983, a Right-of-Way agreement was executed
between respondent and the NIA (Exh. 1). The NIA then paid
respondent the amount of P4,180.00 as Right-of-Way damages.
Respondent subsequently executed an Affidavit of Waiver of Rights
and Fees whereby she waived any compensation for damages to
crops and improvements which she suffered as a result of the
construction of a right-of-way on her property (Exh. 2). The same
year, petitioner offered respondent the sum of P35,000.00 by way
of amicable settlement pursuant to Executive Order No. 1035, 18,
which provides in part that Financial assistance may also be
given to owners of lands acquired under C.A. 141, as amended, for
the area or portion subject to the reservation under Section 12
thereof in such amounts as may be determined by the
implementing agency/instrumentality concerned in consultation
with the Commission on Audit and the assessor's office concerned.
Respondent demanded payment for the taking of her property, but
petitioner refused to pay. Accordingly, respondent filed on
December 10, 1990 a complaint against petitioner before the

PALISOC & SARMIENTO

Regional Trial Court, praying that petitioner be ordered to pay the

sum of P111,299.55 as compensation for the portion of her
property used in the construction of the canal constructed by the
NIA, litigation expenses, and the costs.
Petitioner, through the Office of the Solicitor-General, filed an
Answer, in which he admitted that NIA constructed an irrigation
canal over the property of the plaintiff and that NIA paid a certain
landowner whose property had been taken for irrigation purposes,
but petitioner interposed the defense that: (1) the government had
not consented to be sued; (2) the total area used by the NIA for its
irrigation canal was only 2.27 hectares, not 24,600 square meters;
and (3) respondent was not entitled to compensation for the taking
of her property considering that she secured title over the property
by virtue of a homestead patent under C.A. No. 141.
At the pre-trial conference, the following facts were stipulated
upon: (1) that the area taken was 24,660 square meters; (2) that it
was a portion of the land covered by TCT No. T-22121 in the name
of respondent and her late husband (Exh. A); and (3) that this area
had been taken by the NIA for the construction of an irrigation
canal.[2]
On October 18, 1993, the trial court rendered a decision, the
dispositive portion of which reads:
In view of the foregoing, decision is hereby rendered in favor of
plaintiff and against the defendant ordering the defendant, National
Irrigation Administration, to pay to plaintiff the sum of One Hundred
Seven Thousand Five Hundred Seventeen Pesos and Sixty Centavos
(P107,517.60) as just compensation for the questioned area of
24,660 square meters of land owned by plaintiff and taken by said
defendant NIA which used it for its main canal plus costs.[3]
On November 15, 1993, petitioner appealed to the Court of Appeals
which, on October 31, 2000, affirmed the decision of the Regional
Trial Court. Hence this petition.
The issues in this case are:
1. WHETHER OR NOT THE PETITION IS DISMISSIBLE FOR FAILURE TO
COMPLY WITH THE PROVISIONS OF SECTION 5, RULE 7 OF THE
REVISED RULES OF CIVIL PROCEDURE.
2. WHETHER OR NOT LAND GRANTED BY VIRTUE OF A HOMESTEAD
PATENT AND SUBSEQUENTLY REGISTERED UNDER PRESIDENTIAL
DECREE 1529 CEASES TO BE PART OF THE PUBLIC DOMAIN.

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3. WHETHER OR NOT THE VALUE OF JUST COMPENSATION SHALL BE

DETERMINED FROM THE TIME OF THE TAKING OR FROM THE TIME
OF THE FINALITY OF THE DECISION.
4. WHETHER THE AFFIDAVIT OF WAIVER OF RIGHTS AND FEES
EXECUTED BY RESPONDENT EXEMPTS PETITIONER FROM MAKING
PAYMENT TO THE FORMER.
We shall deal with these issues in the order they are stated.
First. Rule 7, 5 of the 1997 Revised Rules on Civil Procedure
provides
Certification against forum shopping. - The plaintiff or principal
party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has
not theretofore commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency and,
to the best of his knowledge, no such other action or claim is
pending therein; (b) if there is such other pending action or claim, a
complete statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report the fact within five (5) days
therefrom to the court wherein his aforesaid complaint or initiatory
pleading has been filed.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after
hearing . . . .
By reason of Rule 45, 4 of the 1997 Revised Rules on Civil
Procedure, in relation to Rule 42, 2 thereof, the requirement of a
certificate of non-forum shopping applies to the filing of petitions
for review on certiorari of the decisions of the Court of Appeals,
such as the one filed by petitioner.
As provided in Rule 45, 5, "The failure of the petitioner to comply
with any of the foregoing requirements regarding . . . the contents
of the document which should accompany the petition shall be
sufficient ground for the dismissal thereof."
The requirement in Rule 7, 5 that the certification should be
executed by the plaintiff or the principal means that counsel cannot

PALISOC & SARMIENTO

sign the certificate against forum-shopping. The reason for this is

that the plaintiff or principal knows better than anyone else
whether a petition has previously been filed involving the same
case or substantially the same issues. Hence, a certification signed
by counsel alone is defective and constitutes a valid cause for
dismissal of the petition.[4]
In this case, the petition for review was filed by Santiago Eslaban,
Jr., in his capacity as Project Manager of the NIA. However, the
verification and certification against forum-shopping were signed
by Cesar E. Gonzales, the administrator of the agency. The real
party-in-interest is the NIA, which is a body corporate. Without
being duly authorized by resolution of the board of the corporation,
neither Santiago Eslaban, Jr. nor Cesar E. Gonzales could sign the
certificate against forum-shopping accompanying the petition for
review. Hence, on this ground alone, the petition should be
dismissed.
Second. Coming to the merits of the case, the land under litigation,
as already stated, is covered by a transfer certificate of title
registered in the Registry Office of Koronadal, South Cotabato on
May 13, 1976. This land was originally covered by Original
Certificate of Title No. (P-25592) P-9800 which was issued pursuant
to a homestead patent granted on February 18, 1960. We have
held:
Whenever public lands are alienated, granted or conveyed to
applicants thereof, and the deed grant or instrument of conveyance
[sales patent] registered with the Register of Deeds and the
corresponding certificate and owner's duplicate of title issued, such
lands are deemed registered lands under the Torrens System and
the certificate of title thus issued is as conclusive and indefeasible
as any other certificate of title issued to private lands in ordinary or
cadastral registration proceedings.[5]
The Solicitor-General contends, however, that an encumbrance is
imposed on the land in question in view of 39 of the Land
Registration Act (now P.D. No. 1529, 44) which provides:
Every person receiving a certificate of title in pursuance of a decree
of registration, and every subsequent purchaser of registered land
who takes a certificate of title for value in good faith shall hold the
same free from all encumbrances except those noted on said
certificate, and any of the following encumbrances which may be
subsisting, namely:
....

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Third. Any public highway, way, private way established by law, or

any government irrigation canal or lateral thereof, where the
certificate of title does not state that the boundaries of such
highway, way, irrigation canal or lateral thereof, have been
determined.
As this provision says, however, the only servitude which a private
property owner is required to recognize in favor of the government
is the easement of a "public highway, way, private way established
by law, or any government canal or lateral thereof where the
certificate of title does not state that the boundaries thereof have
been pre-determined." This implies that the same should have
been pre-existing at the time of the registration of the land in order
that the registered owner may be compelled to respect it.
Conversely, where the easement is not pre-existing and is sought
to be imposed only after the land has been registered under the
Land Registration Act, proper expropriation proceedings should be
had, and just compensation paid to the registered owner thereof.
[6]
In this case, the irrigation canal constructed by the NIA on the
contested property was built only on October 6, 1981, several years
after the property had been registered on May 13, 1976.
Accordingly, prior expropriation proceedings should have been filed
and just compensation paid to the owner thereof before it could be
taken for public use.
Indeed, the rule is that where private property is needed for
conversion to some public use, the first thing obviously that the
government should do is to offer to buy it.[7] If the owner is willing
to sell and the parties can agree on the price and the other
conditions of the sale, a voluntary transaction can then be
concluded and the transfer effected without the necessity of a
judicial action. Otherwise, the government will use its power of
eminent domain, subject to the payment of just compensation, to
acquire private property in order to devote it to public use.
Third. With respect to the compensation which the owner of the
condemned property is entitled to receive, it is likewise settled that
it is the market value which should be paid or "that sum of money
which a person, desirous but not compelled to buy, and an owner,
willing but not compelled to sell, would agree on as a price to be
given and received therefor."[8] Further, just compensation means
not only the correct amount to be paid to the owner of the land but
also the payment of the land within a reasonable time from its
taking. Without prompt payment, compensation cannot be

PALISOC & SARMIENTO

considered "just" for then the property owner is made to suffer the
consequence of being immediately deprived of his land while being
made to wait for a decade or more before actually receiving the
amount necessary to cope with his loss.[9] Nevertheless, as noted
in Ansaldo v. Tantuico, Jr.,[10] there are instances where the
expropriating agency takes over the property prior to the
expropriation suit, in which case just compensation shall be
determined as of the time of taking, not as of the time of filing of
the action of eminent domain.
Before its amendment in 1997, Rule 67, 4 provided:
Order of condemnation. When such a motion is overruled or when
any party fails to defend as required by this rule, the court may
enter an order of condemnation declaring that the plaintiff has a
lawful right to take the property sought to be condemned, for the
public use or purpose described in the complaint upon the payment
of just compensation to be determined as of the date of the filing of
the complaint. . . .
It is now provided thatSEC. 4. Order of expropriation. If the objections to and the
defense against the right of the plaintiff to expropriate the property
are overruled, or when no party appears to defend as required by
this Rule, the court may issue an order of expropriation declaring
that the plaintiff has a lawful right to take the property sought to be
expropriated, for the public use or purpose described in the
complaint, upon the payment of just compensation to be
determined as of the date of the taking of the property or the filing
of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may
be appealed by any party aggrieved thereby. Such appeal,
however, shall not prevent the court from determining the just
compensation to be paid.
After the rendition of such an order, the plaintiff shall not be
permitted to dismiss or discontinue the proceeding except on such
terms as the court deems just and equitable. (Emphasis added)
Thus, the value of the property must be determined either as of the
date of the taking of the property or the filing of the complaint,
"whichever came first." Even before the new rule, however, it was
already held in Commissioner of Public Highways v. Burgos[11] that
the price of the land at the time of taking, not its value after the
passage of time, represents the true value to be paid as just

148 | P a g e

compensation. It was, therefore, error for the Court of Appeals to

rule that the just compensation to be paid to respondent should be
determined as of the filing of the complaint in 1990, and not the
time of its taking by the NIA in 1981, because petitioner was
allegedly remiss in its obligation to pay respondent, and it was
respondent who filed the complaint. In the case of Burgos,[12] it
was also the property owner who brought the action for
compensation against the government after 25 years since the
taking of his property for the construction of a road.

Folder of Exhibits in Civil Case 396) issued on September 17, 1983

in favor of the appellee, and the letter from the Office of the
Solicitor General recommending the giving of "financial assistance
in the amount of P35,000.00" to the appellee.

Indeed, the value of the land may be affected by many factors. It

may be enhanced on account of its taking for public use, just as it
may depreciate. As observed in Republic v. Lara:[13]

WHEREFORE, premises considered, the assailed decision of the

Court of Appeals is hereby AFFIRMED with MODIFICATION to the
extent that the just compensation for the contested property be
paid to respondent in the amount of P16,047.61 per hectare, with
interest at the legal rate of six percent (6%) per annum from the
time of taking until full payment is made. Costs against petitioner.

[W]here property is taken ahead of the filing of the condemnation

proceedings, the value thereof may be enhanced by the public
purpose for which it is taken; the entry by the plaintiff upon the
property may have depreciated its value thereby; or there may
have been a natural increase in the value of the property from the
time it is taken to the time the complaint is filed, due to general
economic conditions. The owner of private property should be
compensated only for what he actually loses; it is not intended that
his compensation shall extend beyond his loss or injury. And what
he loses is only the actual value of his property at the time it is
taken. This is the only way that compensation to be paid can be
truly just, i.e., "just" not only to the individual whose property is
taken, "but to the public, which is to pay for it" . . . .
In this case, the proper valuation for the property in question is
P16,047.61 per hectare, the price level for 1982, based on the
appraisal report submitted by the commission (composed of the
provincial treasurer, assessor, and auditor of South Cotabato)
constituted by the trial court to make an assessment of the
expropriated land and fix the price thereof on a per hectare basis.
[14]
Fourth. Petitioner finally contends that it is exempt from paying any
amount to respondent because the latter executed an Affidavit of
Waiver of Rights and Fees of any compensation due in favor of the
Municipal Treasurer of Barangay Sto. Nio, South Cotabato.
However, as the Court of Appeals correctly held:
[I]f NIA intended to bind the appellee to said affidavit, it would not
even have bothered to give her any amount for damages caused
on the improvements/crops within the appellee's property. This,
apparently was not the case, as can be gleaned from the
disbursement voucher in the amount of P4,180.00 (page 10 of the

PALISOC & SARMIENTO

Thus, We are inclined to give more credence to the appellee's

explanation that the waiver of rights and fees "pertains only to
improvements and crops and not to the value of the land utilized by
NIA for its main canal."[15]

SO ORDERED.
Power Of Eminent Domain (Expropriation)
Definition:
The power of eminent domain is the inherent right of the State to
condemn private property to public use upon payment of just
compensation.
The right is inherent because it need not be granted by the
Constitution in order for it to exist. The provision in the Constitution
on eminent domain is not a grant of right to the State but actually
serves as a limitation on the government's exercise of its inherent
power and provides a measure of protection to the citizens. [see
Republic vs Tagle, G.R. No. 129079 December 2, 1998]
Constitutional provisions:
Section 9, Article III; Section 18, Article XII; Section 4 and 9, Article
XIII
Distinguished from police power
In the exercise of police power, (a) interest in private property is
typically not appropriated but merely restrained or restricted
because the continued use thereof would be inurious to the public
welfare. (b) Hence, there is no need to pay just compensation. (c)
The purpose of the restraint is to secure the general comfort,
safety, health, and prosperity of the State.
In the exercise of eminent (a) interest in private property is
appropriated by the State (there is loss of ownership) and (b)

149 | P a g e

hence, there is need for just compensation. (c) The purpose of the
exercise is to apply the property for some public purpose.
[see Didipio Earth-Savers Multi-Purpose Association vs Gozun, G.R.
No. 157882, March 30, 2006]
There is exercise of expropriation power even if only a
burden is imposed on the property owner and no loss of
title occurred
Normally, of course, the power of eminent domain results in the
taking or appropriation of title to, and possession of, the
expropriated property; but no cogent reason appears why the said
power may not be availed of to impose only a burden upon the
owner of condemned property, without loss of title and possession.
It is unquestionable that real property may, through expropriation,
be subjected to an easement of right of way. [Republic vs PLDT,
G.R. No. L-18841. January 27, 1969; see also Camarines Norte
Electric Cooperative vs Court of Appeals G.R. No. 109338,
November 20, 2000]
(Note: In Republic vs PLDT, it was held that PLDT can be
compelled to enter into an inter-connection agreement with the
Bureau of Telecommunication for the use of the telephone
company's lines and services to allow inter-service connection
between both telephone systems. This was held to be an exercise
of expropriation powers since private property is subjected to a
burden for public use and benefit. The State may require a public
utility to render services in the general interest, provided just
compensation is paid therefor.
In National Power Corporation vs Manubay Agro-Industrial
Development Corporation, G.R. No. 150936, August 18, 2004, an
action for a right of way filed by an electric power company for the
construction of transmission lines was deemed to be within the
scope of eminent domain power.)
Jurisdiction over complaint for eminent domain is with the
RTC
Expropriation proceedings are actions "incapable of pecuniary
estimation" and thus within the jurisdiction of the Regional Trial
Courts regardless of the value of the propery to be expropriated.
Valuation of the property is required only to determine the amount
of just compensation and not to determine jurisdiction.
[see
Barangay San Roque, Talisay Cebu vs Heirs of Francisco Pastor, G.R.
No. 138896, June 20, 2000 and Bardillon vs Barangay Masili of
Calamba, Laguna G.R. No. 146886, April 30, 2003]
Who may exercise the expropriation power

PALISOC & SARMIENTO

Congress, as the legislative arm of the state, has the inherent

power of eminent domain. However, other entities may exercise
this power by delegation:
i. the President
ii. local government (Sec 19, RA 7610, Local Government Code)
Local government units have no inherent power of eminent domain
and can exercise it only when expressly authorized by the
legislature. By virtue of RA 7160, Congress conferred upon local
government units the power to expropriate. [Lagcao vs Judge Labra
G.R. No. 155746 October 3, 2004]
The expropriation power, when exercised by local government
units, must be through a valid ordinance. A mere resolutin by the
sanggunian is not sufficient compliance with the requirements of
Secton 19 of RA 7610. [see Municipality of Paranaque vs V.M.
Realty Corporation, G.R. No. 127820 July 20, 1998]
iii. administrative bodies
iv. private enterprises performing public services (ex: Napocor)
Requisites for the exercise of Eminent Domain:
(a) Necessity
(b) Private property
(c) Taking must be valid
(d) Public use
(e) Just compensation
A. Necessity
The foundation of the right to exercise eminent domain is genuine
necessity and that necessity must be of public character.
Government may not capriciously or arbitrarily choose which
private property should be expropriated. [Lagcao vs Judge Labra
G.R. No. 155746 October 3, 2004]
When exercised by the Legislature, the question of necessity is
generally a political question. [see Municipality of Meycauayan
Bulacan vs IAC, G.R. No. 72126 January 29, 1988]. But when
exercised by a delegate, the determination of genuine necessity is
a justiciable question. [Republic vs La Orden de PP.. Benedictinos de
Filipinas, G.R. No. L-12792 February 28, 1961]
The RTC has the power to inquire into the legality of the exercise of
the right of eminent domain and to determine whether there is a

150 | P a g e

genuine necessity for it. [Bardillon vs Barangay Masili of Calamba,

Laguna G.R. No. 146886 April 30, 2003]
B. Private Property
All private property capable of ownership may be expropriated,
except money and choses in action. Even services may be subject
to eminent domain. [Republic vs PLDT G.R. No. L-18841. January
27, 1969]
C. Valid Taking
The requisites for valid taking are:
(1) expropriator must enter into a private property
(2) entry must be for more than a momentary period
(3) entry must be under warrant or color of authority
(4) property must be devoted to public use or otherwise informally
appropriated or injuriously affected; and
(5) utilization of the property must be in such a way as to oust the
owner and deprive him of the beneficial enjoyment of the property.
[Republic vs Castellvi, G.R. No. L-20620, August 15, 1974]
Taking contemplates not only deprivation of ownership, but also
deprivation of beneficial use
Taking may include trespass without actual eviction of the owner,
material impairment of the value of the property or prevention of
the ordinary uses for which the property was intended. [see Ayala
de Roxas vs City of Manila G.R. No. L-3144, November 19, 1907;
People vs Fajardo G.R. No. L-12172, August 29, 1958; National
Power Corporation vs Gutierrez , G.R. No. L-60077, January 18,
1991]
D. Concept of Public Use
Restrictive view not applied
It is now settled doctrine that the concept of public use is no
longer limited to traditional purposes. Here, as elsewhere, the idea
that "public use" is strictly limited to clear cases of "use by the
public" has been abandoned. The term "public use" has now been
held to be synonymous with "public interest," "public benefit,"
"public welfare," and "public convenience." [Reyes vs National
Housing Authority G.R. No. 147511, January 20, 2003]
Public use includes indirect advantage to the public
It is accurate to state then that at present whatever may be
beneficially employed for the general welfare satisfies the

PALISOC & SARMIENTO

requirement of public use....The meaning of "public use" has also

been broadened to cover uses which, while not directly available to
the public, redound to their indirect advantage or benefit. [Heirs of
Juancho Ardona vs Reyes, G.R. Nos. L-60549, 60553 to
60555, October 26, 1983]
That only few would actually benefit from the expropriation of the
property does not necessarily diminish the essence and character
of public use. [Manosca vs Court of Appeals, G.R. No. 106440,
January 29, 1996]
E. Just Compensation
a) Fair Market Value
In eminent domain or expropriation proceedings, the general rule is
that the just compensation to which the owner of condemned
property is entitled to is the market value. Market value is "that
sum of money which a person desirous but not compelled to buy,
and an owner willing but not compelled to sell, would agree on as a
price to be given and received therefor." [National Power
Corporation vs Spouses Chiong G.R. No. 152436 June 20, 2003]
Just compensation means the value of the property at the time of
the taking. It means a fair and full equivalent for the loss sustained.
All the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be
considered. [EPZA vs Dulay, G.R. No. L-59603, April 29, 1987]
b) When only a portion of the propery is expropriated
The aforementioned rule, however, is modified where only a part of
a certain property is expropriated. In such a case the owner is not
restricted to compensation for the portion actually taken. In
addition to the market value of the portion taken, he is also entitled
to recover for the consequential damage, if any, to the remaining
part of the property. At the same time, from the total compensation
must be deducted the value of the consequential benefits.
[National Power Corporation vs Spouses Chiong G.R. No. 152436
June 20, 2003]
c) Payment within a reasonable time
Just compensation means not only the correct amount to be paid to
the owner but also payment within a reasonable time from its
taking. [Eslaban vs De Onorio G.R. No. 146062 June 28, 2001]

151 | P a g e

d) Judicial prerogative

f) Determination of value of just compensation

The determination of "just compensation" in eminent domain cases

is a judicial function. The executive department or the legislature
may make the initial determinations but when a party claims a
violation of the guarantee in the Bill of Rights that private property
may not be taken for public use without just compensation, no
statute, decree, or executive order can mandate that its own
determination shall prevail over the court's findings. Much less can
the courts be precluded from looking into the "just-ness" of the
decreed compensation. [EPZA vs Dulay, G.R. No. L-59603, April 29,
1987; see also Panes vs Visayas State College of Agriculture, G.R.
Nos. 56219 & 56220, November 27, 1996]

The value of the property must be determined either as of the date

of the taking or the date of the filing of the complaint, whichever
comes first. [See Eslaban vs De Onorio G.R. No. 146062 June 28,
2001]

In EPZA, P.D. No. 1533 was declared unconstitutional since it

effectively limited te role of the courts to simply stating the lower
value of the property as declared either by the owner or the
assessor. It was held that the valuation in the decree may only
serve as a guiding principle or one of the factors in determining just
compensation but it may not substitute the court's own judgment
as to what amount should be awarded and how to arrive at such
amount

The principal criterion in determining just compensation is the

character of the land at the time of taking. [National Power
Corporation vs Henson G.R. No. 129998 December 29, 1998]

e) Trial by commissioners

g) Entitlement of owner to interest at the rate of 6%

In an expropriation case where the principal issue is the

determination of just compensation, a trial before the
Commissioners is indispensable to allow the parties to present
evidence on the issue of just compensation... the appointment of at
least three (3) competent persons as commissioners to ascertain
just compensation for the property sought to be taken is a
mandatory requirement in expropriation cases...trial with the aid of
the commissioners is a substantial right that may not be done away
with capriciously or for no reason at all.

Once the value of the property is fixed by the court, the amount
shall earn legal interest by way of damages at the rate of 6% per
annum in accordance with Article 2209 of the Civil Code. The 12%
under Central Bank Circular No. 416 applies only to loans or
forbearances of money, goods, or credit. [see National Power
Corporation vs Angas, G.R. Nos. 60225-26, May 8, 1992]

While it is true that the findings of commissioners may be

disregarded and the court may substitute its own estimate of the
value, the latter may only do so for valid reasons, i.e., (i) where the
Commissioners have applied illegal principles to the evidence
submitted to them or (ii) where they have disregarded a clear
preponderance of evidence, or (iii) where the amount allowed is
either grossly inadequate or excessive...in such instances, where
the report of the commissioners may be disregarded, the trial court
may make its own estimate of value from competent evidence that
may be gathered from the record. [Manila Electric Company vs
Pineda, G.R. No. L-59791, February 13, 1992]

PALISOC & SARMIENTO

Exception: when expropriation is exercised by a local government

unit, the amount to be paid shall be determined based on the fair
market value of the property at the time of the taking. [Sec 19, RA
7610] [see Nepomuceno vs City of Surigao, G.R. No. 146091 July
28, 2008; City of Cebu vs Spouses Dedamo G.R. No. 142971 May 7,
2002]

The tax declaration is only one of the factors in determining the

market value of the property for purposes of arriving at the amount
of just compensation. [Republic vs Ker & Co. G.R. No. 136171 July
2, 2002]

h) Remedy of landowner in case of non-payment

As a general rule, non-payment of just compensation in an
expropriation proceeding does not entitle the private landowners to
recover possession of the exproproated lots, but only to demand
payment of the fair market value. [See Republic vs Court of
Appeals G.R. No. 146587 July 2, 2002 and Reyes vs National
Housing Authority G.R. No. 147511, January 20, 2003] Note: in such
case, immunity from suit cannot be invoked by the State since such
doctrine cannot be used to perpetrate an injustice
By way of exception, it has been held that when the government
fails to pay the just compensation within five years from the finality
of judgment in the expropriation proceedings, the owners
concerned shall have the right to recover possession of their

152 | P a g e

property. [see Republic vs Vicente Lim, G.R. No. 161656, June 29,
2005]

PALISOC & SARMIENTO

153 | P a g e

MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY and

AIR
TRANSPORTATION
OFFICE,
Petitioners,
versus
BERNARDO L. LOZADA, SR., and the HEIRS OF ROSARIO
MERCADO, namely, VICENTE LOZADA, MARIO M. LOZADA,
MARCIA L. GODINEZ, VIRGINIA L. FLORES, BERNARDO
LOZADA, JR., DOLORES GACASAN, SOCORRO CAFARO and
ROSARIO LOZADA, represented by MARCIA LOZADA
GODINEZ, Respondents
G.R. No. 176625 | 2010-02-25
DECISION
NACHURA,

J.:

This is a petition for review on certiorari under Rule 45 of the Rules

of Court, seeking to reverse, annul, and set aside the Decision[1]
dated February 28, 2006 and the Resolution[2] dated February 7,
2007 of the Court of Appeals (CA) (Cebu City), Twentieth Division, in
CA-G.R.
CV
No.
65796.
The antecedent facts and proceedings are as follows:
Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an
area of 1,017 square meters, more or less, located in Lahug, Cebu
City. Its original owner was Anastacio Deiparine when the same was
subject to expropriation proceedings, initiated by the Republic of
the Philippines (Republic), represented by the then Civil Aeronautics
Administration (CAA), for the expansion and improvement of the
Lahug Airport. The case was filed with the then Court of First
Instance of Cebu, Third Branch, and docketed as Civil Case No. R1881.
As early as 1947, the lots were already occupied by the U.S. Army.
They were turned over to the Surplus Property Commission, the
Bureau of Aeronautics, the National Airport Corporation and then to
the CAA.

November 16, 1947-the time when the lot was first occupied by the
airport. Lozada received the amount of P3,018.00 by way of
payment.
The affected landowners appealed. Pending appeal, the Air
Transportation Office (ATO), formerly CAA, proposed a compromise
settlement whereby the owners of the lots affected by the
expropriation proceedings would either not appeal or withdraw
their respective appeals in consideration of a commitment that the
expropriated lots would be resold at the price they were
expropriated in the event that the ATO would abandon the Lahug
Airport, pursuant to an established policy involving similar cases.
Because of this promise, Lozada did not pursue his appeal.
Thereafter, Lot No. 88 was transferred and registered in the name
of the Republic under TCT No. 25057.
The projected improvement and expansion plan of the old Lahug
Airport, however, was not pursued.
Lozada, with the other landowners, contacted then CAA Director
Vicente Rivera, Jr., requesting to repurchase the lots, as per
previous agreement. The CAA replied that there might still be a
need for the Lahug Airport to be used as an emergency DC-3
airport. It reiterated, however, the assurance that \"should this
Office dispose and resell the properties which may be found to be
no longer necessary as an airport, then the policy of this Office is to
give priority to the former owners subject to the approval of the
President.\"
On November 29, 1989, then President Corazon C. Aquino issued a
Memorandum to the Department of Transportation, directing the
transfer of general aviation operations of the Lahug Airport to the
Mactan International Airport before the end of 1990 and, upon such
transfer, the closure of the Lahug Airport.

During the pendency of the expropriation proceedings, respondent

Bernardo L. Lozada, Sr. acquired Lot No. 88 from Deiparine.
Consequently, Transfer Certificate of Title (TCT) No. 9045 was
issued
in
Lozada\'s
name.

Sometime in 1990, the Congress of the Philippines passed Republic

Act (R.A.) No. 6958, entitled \"An Act Creating the Mactan-Cebu
International Airport Authority, Transferring Existing Assets of the
Mactan International Airport and the Lahug Airport to the Authority,
Vesting the Authority with Power to Administer and Operate the
Mactan International Airport and the Lahug Airport, and For Other
Purposes.\"

On December 29, 1961, the trial court rendered judgment in favor

of the Republic and ordered the latter to pay Lozada the fair market
value of Lot No. 88, adjudged at P3.00 per square meter, with
consequential damages by way of legal interest computed from

From the date of the institution of the expropriation proceedings up

to the present, the public purpose of the said expropriation
(expansion of the airport) was never actually initiated, realized, or
implemented. Instead, the old airport was converted into a

PALISOC & SARMIENTO

154 | P a g e

commercial complex. Lot No. 88 became the site of a jail known as

Bagong Buhay Rehabilitation Complex, while a portion thereof was
occupied by squatters.[3] The old airport was converted into what
is now known as the Ayala I.T. Park, a commercial area.
Thus, on June 4, 1996, petitioners initiated a complaint for the
recovery of possession and reconveyance of ownership of Lot No.
88. The case was docketed as Civil Case No. CEB-18823 and was
raffled to the Regional Trial Court (RTC), Branch 57, Cebu City. The
complaint
substantially
alleged
as
follows:
(a) Spouses Bernardo and Rosario Lozada were the registered
owners of Lot No. 88 covered by TCT No. 9045;
(b) In the early 1960\'s, the Republic sought to acquire by
expropriation Lot No. 88, among others, in connection with its
program for the improvement and expansion of the Lahug Airport;
(c) A decision was rendered by the Court of First Instance in favor of
the Government and against the land owners, among whom was
Bernardo Lozada, Sr. appealed therefrom;
(d) During the pendency of the appeal, the parties entered into a
compromise settlement to the effect that the subject property
would be resold to the original owner at the same price when it was
expropriated in the event that the Government abandons the Lahug
Airport;
(e) Title to Lot No. 88 was subsequently transferred to the Republic
of the Philippines (TCT No. 25057);
(f) The projected expansion and improvement of the Lahug Airport
did
not
materialize;
(g) Plaintiffs sought to repurchase their property from then CAA
Director Vicente Rivera. The latter replied by giving as assurance
that priority would be given to the previous owners, subject to the
approval of the President, should CAA decide to dispose of the
properties;
(h) On November 29, 1989, then President Corazon C. Aquino,
through a Memorandum to the Department of Transportation and
Communications (DOTC), directed the transfer of general aviation
operations at the Lahug Airport to the Mactan-Cebu International
Airport Authority;

PALISOC & SARMIENTO

(i) Since the public purpose for the expropriation no longer exists,
the property must be returned to the plaintiffs.[4]
In their Answer, petitioners asked for the immediate dismissal of
the complaint. They specifically denied that the Government had
made assurances to reconvey Lot No. 88 to respondents in the
event that the property would no longer be needed for airport
operations. Petitioners instead asserted that the judgment of
condemnation was unconditional, and respondents were, therefore,
not entitled to recover the expropriated property notwithstanding
non-use or abandonment thereof.
After pretrial, but before trial on the merits, the parties stipulated
on the
following set of facts:
(1) The lot involved is Lot No. 88-SWO-25042 of the Banilad Estate,
situated in the City of Cebu, containing an area of One Thousand
Seventeen (1,017) square meters, more or less;
(2) The property was expropriated among several other properties
in Lahug in favor of the Republic of the Philippines by virtue of a
Decision dated December 29, 1961 of the CFI of Cebu in Civil Case
No.
R-1881;
(3) The public purpose for which the property was expropriated was
for the purpose of the Lahug Airport;
(4) After the expansion, the property was transferred in the name of
MCIAA;
[and]
(5) On November 29, 1989, then President Corazon C. Aquino
directed the Department of Transportation and Communication to
transfer general aviation operations of the Lahug Airport to the
Mactan-Cebu International Airport Authority and to close the Lahug
Airport
after
such
transfer[.][5]
During trial, respondents presented Bernardo Lozada, Sr. as their
lone witness, while petitioners presented their own witness,
Mactan-Cebu International Airport Authority legal assistant Michael
Bacarisas.
On October 22, 1999, the RTC rendered its Decision, disposing as
follows:

155 | P a g e

WHEREFORE, in the light of the foregoing, the Court hereby renders

judgment in favor of the plaintiffs, Bernardo L. Lozada, Sr., and the
heirs of Rosario Mercado, namely, Vicente M. Lozada, Marcia L.
Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores L.
Gacasan, Socorro L. Cafaro and Rosario M. Lozada, represented by
their attorney-in-fact Marcia Lozada Godinez, and against
defendants Cebu-Mactan International Airport Authority (MCIAA)
and Air Transportation Office (ATO):
1. ordering MCIAA and ATO to restore to plaintiffs the possession
and ownership of their land, Lot No. 88 Psd-821 (SWO-23803), upon
payment of the expropriation price to plaintiffs; and
2. ordering the Register of Deeds to effect the transfer of the
Certificate of Title from defendant[s] to plaintiffs on Lot No. [88],
cancelling TCT No. 20357 in the name of defendant MCIAA and to
issue a new title on the same lot in the name of Bernardo L. Lozada,
Sr. and the heirs of Rosario Mercado, namely: Vicente M. Lozada,
Mario M. Lozada, Marcia L. Godinez, Virginia L. Flores, Bernardo M.
Lozada, Jr., Dolores L. Gacasan, Socorro L. Cafaro and Rosario M.
Lozada.
No pronouncement as to costs.
SO ORDERED.[6]
Aggrieved, petitioners interposed an appeal to the CA. After the
filing of the necessary appellate briefs, the CA rendered its assailed
Decision dated February 28, 2006, denying petitioners\' appeal and
affirming in toto the Decision of the RTC, Branch 57, Cebu City.
Petitioners\' motion for reconsideration was, likewise, denied in the
questioned CA Resolution dated February 7, 2007.
Hence, this petition arguing that: (1) the respondents utterly failed
to prove that there was a repurchase agreement or compromise
settlement between them and the Government; (2) the judgment in
Civil Case No. R-1881 was absolute and unconditional, giving title in
fee simple to the Republic; and (3) the respondents\' claim of verbal
assurances from government officials violates the Statute of
Frauds.
The petition should be denied.
Petitioners anchor their claim to the controverted property on the
supposition that the Decision in the pertinent expropriation
proceedings did not provide for the condition that should the
intended use of Lot No. 88 for the expansion of the Lahug Airport

PALISOC & SARMIENTO

be aborted or abandoned, the property would revert to

respondents, being its former owners. Petitioners cite, in support of
this position, Fery v. Municipality of Cabanatuan,[7] which declared
that the Government acquires only such rights in expropriated
parcels of land as may be allowed by the character of its title over
the
propertiesIf x x x land is expropriated for a particular purpose, with the
condition that when that purpose is ended or abandoned the
property shall return to its former owner, then, of course, when the
purpose is terminated or abandoned the former owner reacquires
the property so expropriated. If x x x land is expropriated for a
public street and the expropriation is granted upon condition that
the city can only use it for a public street, then, of course, when the
city abandons its use as a public street, it returns to the former
owner, unless there is some statutory provision to the contrary. x x
x. If, upon the contrary, however, the decree of expropriation gives
to the entity a fee simple title, then, of course, the land becomes
the absolute property of the expropriator, whether it be the State, a
province, or municipality, and in that case the non-user does not
have the effect of defeating the title acquired by the expropriation
proceedings. x x x.
When land has been acquired for public use in fee simple,
unconditionally, either by the exercise of eminent domain or by
purchase, the former owner retains no right in the land, and the
public use may be abandoned, or the land may be devoted to a
different use, without any impairment of the estate or title
acquired, or any reversion to the former owner. x x x.[8]
Contrary to the stance of petitioners, this Court had ruled otherwise
in Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu
International Airport Authority,[9] thusMoreover, respondent MCIAA has brought to our attention a
significant and telling portion in the Decision in Civil Case No. R1881 validating our discernment that the expropriation by the
predecessors of respondent was ordered under the running
impression that Lahug Airport would continue in operationAs for the public purpose of the expropriation proceeding, it cannot
now be doubted. Although Mactan Airport is being constructed, it
does not take away the actual usefulness and importance of the
Lahug Airport: it is handling the air traffic both civilian and military.
From it aircrafts fly to Mindanao and Visayas and pass thru it on
their flights to the North and Manila. Then, no evidence was
adduced to show how soon is the Mactan Airport to be placed in

156 | P a g e

operation and whether the Lahug Airport will be closed immediately

thereafter. It is up to the other departments of the Government to
determine said matters. The Court cannot substitute its judgment
for those of the said departments or agencies. In the absence of
such showing, the Court will presume that the Lahug Airport will
continue to be in operation (emphasis supplied).
While in the trial in Civil Case No. R-1881 [we] could have simply
acknowledged the presence of public purpose for the exercise of
eminent domain regardless of the survival of Lahug Airport, the trial
court in its Decision chose not to do so but instead prefixed its
finding of public purpose upon its understanding that \"Lahug
Airport will continue to be in operation.\" Verily, these meaningful
statements in the body of the Decision warrant the conclusion that
the expropriated properties would remain to be so until it was
confirmed that Lahug Airport was no longer \"in operation.\" This
inference further implies two (2) things: (a) after the Lahug Airport
ceased its undertaking as such and the expropriated lots were not
being used for any airport expansion project, the rights vis- -vis
the expropriated Lots Nos. 916 and 920 as between the State and
their former owners, petitioners herein, must be equitably adjusted;
and (b) the foregoing unmistakable declarations in the body of the
Decision should merge with and become an intrinsic part of the
fallo thereof which under the premises is clearly inadequate since
the dispositive portion is not in accord with the findings as
contained in the body thereof.[10]
Indeed, the Decision in Civil Case No. R-1881 should be read in its
entirety, wherein it is apparent that the acquisition by the Republic
of the expropriated lots was subject to the condition that the Lahug
Airport would continue its operation. The condition not having
materialized because the airport had been abandoned, the former
owner should then be allowed to reacquire the expropriated
property.[11]
On this note, we take this opportunity to revisit our ruling in Fery,
which involved an expropriation suit commenced upon parcels of
land to be used as a site for a public market. Instead of putting up a
public market, respondent Cabanatuan constructed residential
houses for lease on the area. Claiming that the municipality lost its
right to the property taken since it did not pursue its public
purpose, petitioner Juan Fery, the former owner of the lots
expropriated, sought to recover his properties. However, as he had
admitted that, in 1915, respondent Cabanatuan acquired a fee
simple title to the lands in question, judgment was rendered in
favor of the municipality, following American jurisprudence,
particularly City of Fort Wayne v. Lake Shore & M.S. RY. Co.,[12]

PALISOC & SARMIENTO

McConihay v. Theodore Wright,[13] and Reichling v. Covington

Lumber Co.,[14] all uniformly holding that the transfer to a third
party of the expropriated real property, which necessarily resulted
in the abandonment of the particular public purpose for which the
property was taken, is not a ground for the recovery of the same by
its previous owner, the title of the expropriating agency being one
of
fee
simple.
Obviously, Fery was not decided pursuant to our now sacredly held
constitutional right that private property shall not be taken for
public use without just compensation.[15] It is well settled that the
taking of private property by the Government\'s power of eminent
domain is subject to two mandatory requirements: (1) that it is for
a particular public purpose; and (2) that just compensation be paid
to the property owner. These requirements partake of the nature of
implied conditions that should be complied with to enable the
condemnor to keep the property expropriated.[16]
More particularly, with respect to the element of public use, the
expropriator should commit to use the property pursuant to the
purpose stated in the petition for expropriation filed, failing which,
it should file another petition for the new purpose. If not, it is then
incumbent upon the expropriator to return the said property to its
private owner, if the latter desires to reacquire the same.
Otherwise, the judgment of expropriation suffers an intrinsic flaw,
as it would lack one indispensable element for the proper exercise
of the power of eminent domain, namely, the particular public
purpose for which the property will be devoted. Accordingly, the
private property owner would be denied due process of law, and
the judgment would violate the property owner\'s right to justice,
fairness,
and
equity.
In light of these premises, we now expressly hold that the taking of
private property, consequent to the Government\'s exercise of its
power of eminent domain, is always subject to the condition that
the property be devoted to the specific public purpose for which it
was taken. Corollarily, if this particular purpose or intent is not
initiated or not at all pursued, and is peremptorily abandoned, then
the former owners, if they so desire, may seek the reversion of the
property, subject to the return of the amount of just compensation
received. In such a case, the exercise of the power of eminent
domain has become improper for lack of the required factual
justification.[17]
Even without the foregoing declaration, in the instant case, on the
question of whether respondents were able to establish the
existence of an oral compromise agreement that entitled them to

157 | P a g e

repurchase Lot No. 88 should the operations of the Lahug Airport be

abandoned,
we
rule
in
the
affirmative.
It bears stressing that both the RTC, Branch 57, Cebu and the CA
have passed upon this factual issue and have declared, in no
uncertain terms, that a compromise agreement was, in fact,
entered into between the Government and respondents, with the
former undertaking to resell Lot No. 88 to the latter if the
improvement and expansion of the Lahug Airport would not be
pursued. In affirming the factual finding of the RTC to this effect,
the
CA
declaredLozada\'s testimony is cogent. An octogenarian widower-retiree and
a resident of Moon Park, California since 1974, he testified that
government representatives verbally promised him and his late
wife while the expropriation proceedings were on-going that the
government shall return the property if the purpose for the
expropriation no longer exists. This promise was made at the
premises of the airport. As far as he could remember, there were no
expropriation proceedings against his property in 1952 because the
first notice of expropriation he received was in 1962. Based on the
promise, he did not hire a lawyer. Lozada was firm that he was
promised that the lot would be reverted to him once the public use
of the lot ceases. He made it clear that the verbal promise was
made in Lahug with other lot owners before the 1961 decision was
handed down, though he could not name the government
representatives who made the promise. It was just a verbal
promise; nevertheless, it is binding. The fact that he could not
supply the necessary details for the establishment of his assertions
during cross-examination, but that \"When it will not be used as
intended, it will be returned back, we just believed in the
government,\" does not dismantle the credibility and truthfulness of
his allegation. This Court notes that he was 89 years old when he
testified in November 1997 for an incident which happened
decades ago. Still, he is a competent witness capable of perceiving
and making his perception known. The minor lapses are immaterial.
The decision of the competency of a witness rests primarily with
the trial judge and must not be disturbed on appeal unless it is
clear that it was erroneous. The objection to his competency must
be made before he has given any testimony or as soon as the
incompetency becomes apparent. Though Lozada is not part of the
compromise agreement,[18] he nevertheless adduced sufficient
evidence to support his claim.[19]
As correctly found by the CA, unlike in Mactan Cebu International
Airport Authority v. Court of Appeals,[20] cited by petitioners,
where respondent therein offered testimonies which were hearsay

PALISOC & SARMIENTO

in nature, the testimony of Lozada was based on personal

knowledge as the assurance from the government was personally
made to him. His testimony on cross-examination destroyed neither
his credibility as a witness nor the truthfulness of his words.
Verily, factual findings of the trial court, especially when affirmed
by the CA, are binding and conclusive on this Court and may not be
reviewed. A petition for certiorari under Rule 45 of the Rules of
Court contemplates only questions of law and not of fact.[21] Not
one of the exceptions to this rule is present in this case to warrant
a reversal of such findings.
As regards the position of petitioners that respondents\' testimonial
evidence violates the Statute of Frauds, suffice it to state that the
Statute of Frauds operates only with respect to executory contracts,
and does not apply to contracts which have been completely or
partially performed, the rationale thereof being as follows:
In executory contracts there is a wide field for fraud because unless
they be in writing there is no palpable evidence of the intention of
the contracting parties. The statute has precisely been enacted to
prevent fraud. However, if a contract has been totally or partially
performed, the exclusion of parol evidence would promote fraud or
bad faith, for it would enable the defendant to keep the benefits
already delivered by him from the transaction in litigation, and, at
the same time, evade the obligations, responsibilities or liabilities
assumed or contracted by him thereby.[22]
In this case, the Statute of Frauds, invoked by petitioners to bar the
claim of respondents for the reacquisition of Lot No. 88, cannot
apply, the oral compromise settlement having been partially
performed. By reason of such assurance made in their favor,
respondents relied on the same by not pursuing their appeal before
the CA. Moreover, contrary to the claim of petitioners, the fact of
Lozada\'s eventual conformity to the appraisal of Lot No. 88 and his
seeking the correction of a clerical error in the judgment as to the
true area of Lot No. 88 do not conclusively establish that
respondents absolutely parted with their property. To our mind,
these acts were simply meant to cooperate with the government,
particularly because of the oral promise made to them.
The right of respondents to repurchase Lot No. 88 may be enforced
based on a constructive trust constituted on the property held by
the government in favor of the former. On this note, our ruling in
Heirs of Timoteo Moreno is instructive, viz.:
Mactan-Cebu International Airport Authority is correct in stating

158 | P a g e

that one would not find an express statement in the Decision in

Civil Case No. R-1881 to the effect that \"the [condemned] lot would
return to [the landowner] or that [the landowner] had a right to
repurchase the same if the purpose for which it was expropriated is
ended or abandoned or if the property was to be used other than as
the Lahug Airport.\" This omission notwithstanding, and while the
inclusion of this pronouncement in the judgment of condemnation
would have been ideal, such precision is not absolutely necessary
nor is it fatal to the cause of petitioners herein. No doubt, the return
or repurchase of the condemned properties of petitioners could be
readily justified as the manifest legal effect or consequence of the
trial court\'s underlying presumption that \"Lahug Airport will
continue to be in operation\" when it granted the complaint for
eminent domain and the airport discontinued its activities.
The predicament of petitioners involves a constructive trust, one
that is akin to the implied trust referred to in Art. 1454 of the Civil
Code, \"If an absolute conveyance of property is made in order to
secure the performance of an obligation of the grantor toward the
grantee, a trust by virtue of law is established. If the fulfillment of
the obligation is offered by the grantor when it becomes due, he
may demand the reconveyance of the property to him.\" In the case
at bar, petitioners conveyed Lots No. 916 and 920 to the
government with the latter obliging itself to use the realties for the
expansion of Lahug Airport; failing to keep its bargain, the
government can be compelled by petitioners to reconvey the
parcels of land to them, otherwise, petitioners would be denied the
use of their properties upon a state of affairs that was not
conceived nor contemplated when the expropriation was
authorized.
Although the symmetry between the instant case and the situation
contemplated by Art. 1454 is not perfect, the provision is
undoubtedly applicable. For, as explained by an expert on the law
of trusts: \"The only problem of great importance in the field of
constructive trust is to decide whether in the numerous and varying
fact situations presented to the courts there is a wrongful holding of
property and hence a threatened unjust enrichment of the
defendant.\" Constructive trusts are fictions of equity which are
bound by no unyielding formula when they are used by courts as
devices to remedy any situation in which the holder of legal title
may not in good conscience retain the beneficial interest.
In constructive trusts, the arrangement is temporary and passive in
which the trustee\'s sole duty is to transfer the title and possession
over the property to the plaintiff-beneficiary. Of course,
the \"wronged party seeking the aid of a court of equity in

PALISOC & SARMIENTO

establishing a constructive trust must himself do equity.\"

Accordingly, the court will exercise its discretion in deciding what
acts are required of the plaintiff-beneficiary as conditions precedent
to obtaining such decree and has the obligation to reimburse the
trustee the consideration received from the latter just as the
plaintiff-beneficiary would if he proceeded on the theory of
rescission. In the good judgment of the court, the trustee may also
be paid the necessary expenses he may have incurred in sustaining
the property, his fixed costs for improvements thereon, and the
monetary value of his services in managing the property to the
extent that plaintiff-beneficiary will secure a benefit from his acts.
The rights and obligations between the constructive trustee and
the beneficiary, in this case, respondent MCIAA and petitioners over
Lots Nos. 916 and 920, are echoed in Art. 1190 of the Civil
Code, \"When the conditions have for their purpose the
extinguishment of an obligation to give, the parties, upon the
fulfillment of said conditions, shall return to each other what they
have received x x x In case of the loss, deterioration or
improvement of the thing, the provisions which, with respect to the
debtor, are laid down in the preceding article shall be applied to the
party who is bound to return x x x.\"[23]
On the matter of the repurchase price, while petitioners are obliged
to reconvey Lot No. 88 to respondents, the latter must return to the
former what they received as just compensation for the
expropriation of the property, plus legal interest to be computed
from default, which in this case runs from the time petitioners
comply
with
their
obligation
to
respondents.
Respondents must likewise pay petitioners the necessary expenses
they may have incurred in maintaining Lot No. 88, as well as the
monetary value of their services in managing it to the extent that
respondents
were
benefited
thereby.
Following Article 1187[24] of the Civil Code, petitioners may keep
whatever income or fruits they may have obtained from Lot No. 88,
and respondents need not account for the interests that the
amounts they received as just compensation may have earned in
the meantime.
In accordance with Article 1190[25] of the Civil Code vis- -vis
Article 1189, which provides that \"(i)f a thing is improved by its
nature, or by time, the improvement shall inure to the benefit of
the creditor x x x,\" respondents, as creditors, do not have to pay,
as part of the process of restitution, the appreciation in value of Lot
No. 88, which is a natural consequence of nature and time.[26]

159 | P a g e

WHEREFORE, the petition is DENIED. The February 28, 2006

Decision of the Court of Appeals, affirming the October 22, 1999
Decision of the Regional Trial Court, Branch 87, Cebu City, and its
February 7, 2007 Resolution are AFFIRMED with MODIFICATION as
follows:
1. Respondents are ORDERED to return to petitioners the just
compensation they received for the expropriation of Lot No. 88,
plus legal interest, in the case of default, to be computed from the
time petitioners comply with their obligation to reconvey Lot No. 88
to them;
2. Respondents are ORDERED to pay petitioners the necessary
expenses the latter incurred in maintaining Lot No. 88, plus the
monetary value of their services to the extent that respondents
were benefited thereby;
3. Petitioners are ENTITLED to keep whatever fruits and income
they may have obtained from Lot No. 88; and
4. Respondents are also ENTITLED to keep whatever interests the
amounts they received as just compensation may have earned in
the meantime, as well as the appreciation in value of Lot No. 88,
which is a natural consequence of nature and time;
In light of the foregoing modifications, the case is REMANDED to
the Regional Trial Court, Branch 57, Cebu City, only for the purpose
of receiving evidence on the amounts that respondents will have to
pay petitioners in accordance with this Court\'s decision. No costs.
SO ORDERED.

PALISOC & SARMIENTO

160 | P a g e

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP.

RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND
UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES,
CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT,
RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA
BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI
CA?ETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN
MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III,
GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA
GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA,
WILLIAM
RAGAMAT,
MARICAR
RAMOS, ENRIK
FORT
REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ
RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA,
NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE
MAE TABING, VANESSA ANNE TORNO, MARIA ESTER
VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs. HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETA
G.R. No. 187167 | 2011-08-16
EN BANC
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails
the constitutionality of Republic Act No. 95221 (RA 9522) adjusting
the country's archipelagic baselines and classifying the baseline
regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2
demarcating the maritime baselines of the Philippines as an
archipelagic State.3 This law followed the framing of the
Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I),4 codifying, among others, the sovereign right of States
parties over their "territorial sea" the breadth of which, however,
was left undetermined. Attempts to fill this void during the second
round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Thus, domestically, RA 3046 remained unchanged for nearly five

PALISOC & SARMIENTO

decades, save for legislation passed in 1968 (Republic Act No. 5446
[RA 5446]) correcting typographical errors and reserving the
drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522,
the statute now under scrutiny. The change was prompted by the
need to make RA 3046 compliant with the terms of the United
Nations Convention on the Law of the Sea (UNCLOS III),5 which the
Philippines ratified on 27 February 1984.6 Among others, UNCLOS
III prescribes the water-land ratio, length, and contour of baselines
of archipelagic States like the Philippines7 and sets the deadline for
the filing of application for the extended continental shelf.8
Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
"regimes of islands" whose islands generate their own applicable
maritime zones.
Petitioners, professors of law, law students and a legislator, in their
respective capacities as "citizens, taxpayers or x x x legislators,"9
as the case may be, assail the constitutionality of RA 9522 on two
principal grounds, namely: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine state's sovereign
power, in violation of Article 1 of the 1987 Constitution,10
embodying the terms of the Treaty of Paris11 and ancillary
treaties,12 and (2) RA 9522 opens the country's waters landward of
the baselines to maritime passage by all vessels and aircrafts,
undermining Philippine sovereignty and national security,
contravening the country's nuclear-free policy, and damaging
marine resources, in violation of relevant constitutional
provisions.13
In addition, petitioners contend that RA 9522's treatment of the KIG
as "regime of islands" not only results in the loss of a large
maritime area but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of territorial diminution,
petitioners facially attack RA 9522 for what it excluded and
included - its failure to reference either the Treaty of Paris or Sabah
and its use of UNCLOS III's framework of regime of islands to
determine the maritime zones of the KIG and the Scarborough
Shoal.
Commenting on the petition, respondent officials raised threshold
issues questioning (1) the petition's compliance with the case or
controversy requirement for judicial review grounded on
petitioners' alleged lack of locus standi and (2) the propriety of the

161 | P a g e

writs of certiorari and prohibition to assail the constitutionality of

RA 9522. On the merits, respondents defended RA 9522 as the
country's compliance with the terms of UNCLOS III, preserving
Philippine territory over the KIG or Scarborough Shoal. Respondents
add that RA 9522 does not undermine the country's security,
environment and economic interests or relinquish the Philippines'
claim over Sabah.

peculiar nature of RA 9522, it is understandably difficult to find

other litigants possessing "a more direct and specific interest" to
bring the suit, thus satisfying one of the requirements for granting
citizenship standing.17

Respondents also question the normative force, under international

law, of petitioners' assertion that what Spain ceded to the United
States under the Treaty of Paris were the islands and all the waters
found within the boundaries of the rectangular area drawn under
the Treaty of Paris.

In praying for the dismissal of the petition on preliminary grounds,

respondents seek a strict observance of the offices of the writs of
certiorari and prohibition, noting that the writs cannot issue absent
any showing of grave abuse of discretion in the exercise of judicial,
quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.18

We left unacted petitioners' prayer for an injunctive writ.

The Issues
The petition raises the following issues:
1. Preliminarily 1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper
remedies to assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus
standi to bring this suit as citizens and (2) the writs of certiorari and
prohibition are proper remedies to test the constitutionality of RA
9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues Petitioners Possess Locus Standi
as Citizens
Petitioners themselves undermine their assertion of locus standi as
legislators and taxpayers because the petition alleges neither
infringement of legislative prerogative15 nor misuse of public
funds,16 occasioned by the passage and implementation of RA
9522. Nonetheless, we recognize petitioners' locus standi as
citizens with constitutionally sufficient interest in the resolution of
the merits of the case which undoubtedly raises issues of national
significance necessitating urgent resolution. Indeed, owing to the

PALISOC & SARMIENTO

The Writs of Certiorari and Prohibition Are Proper Remedies

to Test the Constitutionality of Statutes

Respondents' submission holds true in ordinary civil proceedings.

When this Court exercises its constitutional power of judicial review,
however, we have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the constitutionality
of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes
crafted out of statutes which, while having no bearing on the
personal interests of the petitioners, carry such relevance in the life
of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, noncompliance with the letter of procedural rules notwithstanding. The
statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional. RA 9522 is a Statutory Tool
to Demarcate the Country's Maritime Zones and Continental
Shelf Under UNCLOS III, not to Delineate Philippine
Territory
Petitioners submit that RA 9522 "dismembers a large portion of the
national territory"21 because it discards the pre-UNCLOS III
demarcation of Philippine territory under the Treaty of Paris and
related treaties, successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions. Petitioners
theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over
waters, beyond the territorial sea recognized at the time of the
Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris' technical description,
Philippine sovereignty over territorial waters extends hundreds of
nautical miles around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.22

162 | P a g e

Petitioners' theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of
territory. It is a multilateral treaty regulating, among others, seause rights over maritime zones (i.e., the territorial waters [12
nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III
delimits.23 UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms
regulating the conduct of States in the world's oceans and
submarine areas, recognizing coastal and archipelagic States'
graduated authority over a limited span of waters and submarine
lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by
UNCLOS III States parties to mark-out specific basepoints along
their coasts from which baselines are drawn, either straight or
contoured, to serve as geographic starting points to measure the
breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any
clearer:
Article 48. Measurement of the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental
shelf. - The breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with
article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for
UNCLOS III States parties to delimit with precision the extent of
their maritime zones and continental shelves. In turn, this gives
notice to the rest of the international community of the scope of
the maritime space and submarine areas within which States
parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to
enforce customs, fiscal, immigration, and sanitation laws in the
contiguous zone (Article 33), and the right to exploit the living and
non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
Even under petitioners' theory that the Philippine territory
embraces the islands and all the waters within the rectangular area
delimited in the Treaty of Paris, the baselines of the Philippines
would still have to be drawn in accordance with RA 9522 because
this is the only way to draw the baselines in conformity with

PALISOC & SARMIENTO

UNCLOS III. The baselines cannot be drawn from the boundaries or

other portions of the rectangular area delineated in the Treaty of
Paris, but from the "outermost islands and drying reefs of the
archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of
territory. Under traditional international law typology, States
acquire (or conversely, lose) territory through occupation,
accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to
comply with the treaty's terms to delimit maritime zones and
continental shelves. Territorial claims to land features are outside
UNCLOS III, and are instead governed by the rules on general
international law.26
RA 9522's Use of the Framework of Regime of Islands to
Determine the Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent with the Philippines'
Claim of Sovereignty Over these Areas
Petitioners next submit that RA 9522's use of UNCLOS III's regime of
islands framework to draw the baselines, and to measure the
breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27 Petitioners add that the KIG's
(and Scarborough Shoal's) exclusion from the Philippine
archipelagic baselines results in the loss of "about 15,000 square
nautical miles of territorial waters," prejudicing the livelihood of
subsistence fishermen.28 A comparison of the configuration of the
baselines drawn under RA 3046 and RA 9522 and the extent of
maritime space encompassed by each law, coupled with a reading
of the text of RA 9522 and its congressional deliberations, vis-a -vis
the Philippines' obligations under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA
9522 shows that RA 9522 merely followed the basepoints mapped
by RA 3046, save for at least nine basepoints that RA 9522 skipped
to optimize the location of basepoints and adjust the length of one
baseline (and thus comply with UNCLOS III's limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522,
the KIG and the Scarborough Shoal lie outside of the baselines
drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners' argument
branding RA 9522 as a statutory renunciation of the Philippines'
claim over the KIG, assuming that baselines are relevant for this
purpose.

163 | P a g e

Petitioners' assertion of loss of "about 15,000 square nautical miles

of territorial waters" under RA 9522 is similarly unfounded both in
fact and law. On the contrary, RA 9522, by optimizing the location
of basepoints, increased the Philippines' total maritime space
(covering its internal waters, territorial sea and exclusive economic
zone) by 145,216 square nautical miles, as shown in the table
below:29
Extent of maritime area using RA 3046, as amended, taking into
account the Treaty of Paris' delimitation (in square nautical miles)
Extent of maritime area using RA 9522, taking into account
UNCLOS III (in square nautical miles)
Internal or archipelagic waters
166,858
171,435

a) The Kalayaan Island Group as constituted under Presidential

Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis
supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough
Shoal as part of the Philippine archipelago, adverse legal effects
would have ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. First, Article 47 (3) of
UNCLOS III requires that "[t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of
the archipelago." Second, Article 47 (2) of UNCLOS III requires that
"the length of the baselines shall not exceed 100 nautical miles,"
save for three per cent (3%) of the total number of baselines which
can reach up to 125 nautical miles.31

Exclusive Economic Zone

382,669

Although the Philippines has consistently claimed sovereignty over

the KIG32 and the Scarborough Shoal for several decades, these
outlying areas are located at an appreciable distance from the
nearest shoreline of the Philippine archipelago,33 such that any
straight baseline loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the general
configuration of the archipelago."

TOTAL
440,994
586,210

The principal sponsor of RA 9522 in the Senate, Senator Miriam

Defensor-Santiago, took pains to emphasize the foregoing during
the Senate deliberations:

Thus, as the map below shows, the reach of the exclusive economic
zone drawn under RA 9522 even extends way beyond the waters
covered by the rectangular demarcation under the Treaty of Paris.
Of course, where there are overlapping exclusive economic zones
of opposite or adjacent States, there will have to be a delineation of
maritime boundaries in accordance with UNCLOS III.30

What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines
we might be accused of violating the provision of international law
which states: "The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the
archipelago." So sa loob ng ating baseline, dapat magkalapit ang
mga islands. Dahil malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.

Territorial Sea
274,136
32,106

Further, petitioners' argument that the KIG now lies outside

Philippine territory because the baselines that RA 9522 draws do
not enclose the KIG is negated by RA 9522 itself. Section 2 of the
law commits to text the Philippines' continued claim of sovereignty
and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the
Philippines likewise exercises sovereignty and jurisdiction shall be
determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations
Convention on the Law of the Sea (UNCLOS):

PALISOC & SARMIENTO

This is called contested islands outside our configuration. We see

that our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle
doon sa itaas, that is Scarborough Shoal, itong malaking circle sa
ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa
ating archipelago kaya kung ilihis pa natin ang dating archipelagic
baselines para lamang masama itong dalawang circles, hindi na sila

164 | P a g e

magkalapit at baka hindi na tatanggapin ng United Nations because

of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded
UNCLOS III's limits. The need to shorten this baseline, and in
addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the
Philippines to draw the outer limits of its maritime zones including
the extended continental shelf in the manner provided by Article 47
of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446,
the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3
Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This
exceeds the maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that "The length of such baselines shall
not exceed 100 nautical miles, except that up to 3 per cent of the
total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints
can be skipped or deleted from the baselines system. This will
enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968,
and not established by geodetic survey methods. Accordingly,
some of the points, particularly along the west coasts of Luzon
down to Palawan were later found to be located either inland or on
water, not on low-water line and drying reefs as prescribed by
Article 47.35
Hence, far from surrendering the Philippines' claim over the KIG
and the Scarborough Shoal, Congress' decision to classify the KIG
and the Scarborough Shoal as "Regime[s] of Islands' under the
Republic of the Philippines consistent with Article 121"36 of
UNCLOS III manifests the Philippine State's responsible observance
of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any "naturally formed area of land,
surrounded by water, which is above water at high tide," such as
portions of the KIG, qualifies under the category of "regime of
islands," whose islands generate their own applicable maritime
zones.37
Statutory Claim Over Sabah under RA 5446 Retained

PALISOC & SARMIENTO

Petitioners' argument for the invalidity of RA 9522 for its failure to

textualize the Philippines' claim over Sabah in North Borneo is also
untenable. Section 2 of RA 5446, which RA 9522 did not repeal,
keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Act is without prejudice to
the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty.
(Emphasis supplied)
UNCLOS III and RA 9522 notIncompatible
Constitution's Delineation of Internal Waters

with

the

As their final argument against the validity of RA 9522, petitioners

contend that the law unconstitutionally "converts" internal waters
into archipelagic waters, hence subjecting these waters to the right
of innocent and sea lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of
the Constitution39 or as "archipelagic waters" under UNCLOS III
(Article 49 [1]), the Philippines exercises sovereignty over the body
of water lying landward of the baselines, including the air space
over it and the submarine areas underneath. UNCLOS III affirms
this:
Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil. 1. The sovereignty of an archipelagic State extends to the waters
enclosed by the archipelagic baselines drawn in accordance with
article 47, described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic
waters, as well as to their bed and subsoil, and the resources
contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this
Part shall not in other respects affect the status of the archipelagic
waters, including the sea lanes, or the exercise by the archipelagic

165 | P a g e

State of its sovereignty over such waters and their air space, bed
and subsoil, and the resources contained therein. (Emphasis
supplied)
The fact of sovereignty, however, does not preclude the operation
of municipal and international law norms subjecting the territorial
sea or archipelagic waters to necessary, if not marginal, burdens in
the interest of maintaining unimpeded, expeditious international
navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of
the Philippine government, in the competent discharge of their
constitutional powers, may pass legislation designating routes
within the archipelagic waters to regulate innocent and sea lanes
passage.40 Indeed, bills drawing nautical highways for sea lanes
passage are now pending in Congress.41
In the absence of municipal legislation, international law norms,
now codified in UNCLOS III, operate to grant innocent passage
rights over the territorial sea or archipelagic waters, subject to the
treaty's limitations and conditions for their exercise.42 Significantly,
the right of innocent passage is a customary international law,43
thus automatically incorporated in the corpus of Philippine law.44
No modern State can validly invoke its sovereignty to absolutely
forbid innocent passage that is exercised in accordance with
customary international law without risking retaliatory measures
from the international community.
The fact that for archipelagic States, their archipelagic waters are
subject to both the right of innocent passage and sea lanes
passage45 does not place them in lesser footing vis-a -vis
continental coastal States which are subject, in their territorial sea,
to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights
through archipelagic waters under UNCLOS III was a concession by
archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or
distance from the coast, as archipelagic waters subject to their
territorial sovereignty. More importantly, the recognition of
archipelagic States' archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the treatment of their
islands as separate islands under UNCLOS III.46 Separate islands
generate their own maritime zones, placing the waters between
islands separated by more than 24 nautical miles beyond the
States' territorial sovereignty, subjecting these waters to the rights
of other States under UNCLOS III.47

PALISOC & SARMIENTO

Petitioners' invocation of non-executory constitutional provisions in

Article II (Declaration of Principles and State Policies)48 must also
fail. Our present state of jurisprudence considers the provisions in
Article II as mere legislative guides, which, absent enabling
legislation, "do not embody judicially enforceable constitutional
rights x x x."49 Article II provisions serve as guides in formulating
and interpreting implementing legislation, as well as in interpreting
executory provisions of the Constitution. Although Oposa v.
Factoran50 treated the right to a healthful and balanced ecology
under Section 16 of Article II as an exception, the present petition
lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the
protection of marine wealth (Article XII, Section 2, paragraph 251 )
and subsistence fishermen (Article XIII, Section 752 ), are not
violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to
delimit its exclusive economic zone, reserving solely to the
Philippines the exploitation of all living and non-living resources
within such zone. Such a maritime delineation binds the
international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to
UNCLOS III, the international community will of course reject it and
will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space - the exclusive
economic zone - in waters previously part of the high seas. UNCLOS
III grants new rights to coastal States to exclusively exploit the
resources found within this zone up to 200 nautical miles.53
UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the
territorial sea before UNCLOS III.
RA 9522 and the Philippines' Maritime Zones
Petitioners hold the view that, based on the permissive text of
UNCLOS III, Congress was not bound to pass RA 9522.54 We have
looked at the relevant provision of UNCLOS III55 and we find
petitioners' reading plausible. Nevertheless, the prerogative of
choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep
price. Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for
a two-fronted disaster: first, it sends an open invitation to the

166 | P a g e

seafaring powers to freely enter and exploit the resources in the

waters and submarine areas around our archipelago; and second, it
weakens the country's case in any international dispute over
Philippine maritime space. These are consequences Congress
wisely avoided.
The enactment of UNCLOS III compliant baselines law for the
Philippine archipelago and adjacent areas, as embodied in RA 9522,
allows an internationally-recognized delimitation of the breadth of
the Philippines' maritime zones and continental shelf. RA 9522 is
therefore a most vital step on the part of the Philippines in
safeguarding its maritime zones, consistent with the Constitution
and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
Political Law; Constitutional Law; National Territory
The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the
Philippines. [Art. 1, 1987 Philippine Constitution]

Straight baseline method consists of drawing straight lines

connecting appropriate points on the coast without departing to
any appreciable extent from the general direction of the coast.
These baselines divide the internal waters from the territorial
waters of the archipelago. [Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer (2011)].
The Baselines Law (R.A. 9533) is constitutional
Baselines laws are nothing but statutory mechanisms for UNCLOS III
state parties to delimit with precision the extent of their maritime
zones and continental shelves. In turn, this gives notice to the rest
of the community of the scope of their maritime space and
submarine areas within which state parties exercise. The law has
nothing to do with acquisition, enlargement, or diminution of
territory, as States may only acquire (or lose) territory through
occupation, accretion, cession, and prescription. [Magallona v.
Ermita, G.R. No. 187167, August 16, 2011]

Basically, the Philippine territory includes:

1. The Philippine archipelago that body of water studded with
islands.
2. All other territories which the Philippines has sovereignty or
jurisdiction.
3. The territorial sea, the sea bed, the subsoil, the insular
shelves, and other submarine areas corresponding to (a)
and (b) including its terrestrial, fluvial, and aerial domains.
[Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer (2011)]
Archipelagic Doctrine
Archipelagic doctrine means [T]he waters around, between and
connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the
Philippines[Nachura, Outline Reviewer in Political Law
(2009)]

PALISOC & SARMIENTO

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THE DEPARTMENT OF HEALTH, SECRETARY MANUEL M.

DAYRIT, USEC. MA. MARGARITA GALON and USEC. ANTONIO
M. LOPEZ, Petitioners, versus PHIL. PHARMAWEALTH, INC.,
Respondent.
G.R. No. 169304 | 2007-03-13
DECISION
CARPIO MORALES, J.:
Assailed via petition for review are issuances of the Court of
Appeals in CA-G.R. SP No. 84457, to wit: a) Decision[1] dated May
12, 2005 which affirmed the order issued by Judge Leoncio M.
Janolo, Jr. of the Regional Trial Court of Pasig City, Branch 264
denying petitioners' motion to dismiss Civil Case No. 68208; and b)
Resolution[2] dated August 9, 2005 which denied petitioners'
motion for reconsideration.
Phil. Pharmawealth, Inc. (respondent) is a domestic corporation
engaged in the business of manufacturing and supplying
pharmaceutical products to government hospitals in the
Philippines.
On December 22, 1998, then Secretary of Health Alberto G.
Romualdez, Jr. issued Administrative Order (A.O.) No. 27,[3] Series
of 1998, outlining the guidelines and procedures on the
accreditation of government suppliers for pharmaceutical products.
A.O. No. 27 was later amended by A.O. No. 10,[4] Series of 2000,
providing for additional guidelines for accreditation of drug
suppliers aimed at ensuring that only qualified bidders can transact
business with petitioner Department of Health (DOH). Part V of A.O.
No. 10 reads, in part:
1. Drug Manufacturer, Drug Trader and Drug Importer shall be
allowed to apply for accreditation.
2. Accreditation shall be done by the Central Office-Department of
Health.
3. A separate accreditation is required for the drug suppliers and for
their specific products.
xxxx
12. Only products accredited by the Committee shall be allowed to

PALISOC & SARMIENTO

be procured by the DOH and all otherentities under its jurisdiction.

[5] (Underscoring supplied)
On May 9, 2000[6] and May 29, 2000,[7] respondent submitted to
petitioner DOH a request for the inclusion of additional items in its
list of accredited drug products, including the antibiotic "Penicillin G
Benzathine." Based on the schedule provided by petitioner DOH, it
appears that processing of and release of the result of respondent's
request were due on September 2000, the last month of the
quarter following the date of its filing.[8]
Sometime in September 2000, petitioner DOH, through petitioner
Antonio M. Lopez, chairperson of the pre-qualifications, bids and
awards committee, issued an Invitation for Bids[9] for the
procurement of 1.2 million units vials of Penicillin G Benzathine
(Penicillin G Benzathine contract).
Despite the lack of response from petitioner DOH regarding
respondent's request for inclusion of additional items in its list of
accredited products, respondent submitted its bid for the Penicillin
G Benzathine contract. When the bids were opened on October 11,
2000, only two companies participated, with respondent submitting
the lower bid at P82.24 per unit, compared to Cathay/YSS
Laboratories' (YSS) bid of P95.00 per unit. In view, however, of the
non-accreditation of respondent's Penicillin G Benzathine product,
the contract was awarded to YSS.
Respondent thus filed a complaint[10] for injunction, mandamus
and damages with prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order with the Regional Trial
Court of Pasig City praying, inter alia, that the trial court "nullify the
award of the Penicillin G Benzathine contract (IFB No. 2000-10-11
[14]) to YSS Laboratories, Inc. and direct defendant DOH, defendant
Romualdez, defendant Galon and defendant Lopez to declare
plaintiff Pharmawealth as the lowest complying responsible bidder
for the Benzathine contract, and that they accordingly award the
same to plaintiff company" and "adjudge defendants Romualdez,
Galon and Lopez liable, jointly and severally to plaintiff, for [the
therein specified damages]."[11]
In their Comment,[12] petitioner DOH, Secretary Alberto
Romualdez, Jr. who was later succeeded by petitioner Secretary
Manuel M. Dayrit, and individual petitioners Undersecretaries
Margarita Galon and Antonio Lopez argued for the dismissal of the
complaint for lack of merit in view of the express reservation made
by petitioner DOH to accept or reject any or all bids without

168 | P a g e

incurring liability to the bidders, they positing that government

agencies have such full discretion.
Petitioners subsequently filed a Manifestation and Motion[13]
(motion to dismiss) praying for the outright dismissal of the
complaint based on the doctrine of state immunity. Additionally,
they alleged that respondent's representative was not duly
authorized by its board of directors to file the complaint.
To petitioners' motion to dismiss, respondent filed its
comment/opposition[14] contending, in the main, that the doctrine
of state immunity is not applicable considering that individual
petitioners are being sued both in their official and personal
capacities, hence, they, not the state, would be liable for damages.
By Order of December 8, 2003, the trial court[15] denied
petitioners' motion to dismiss.
Their motion for reconsideration having been denied,[16]
petitioners filed a petition for certiorari[17] with the Court of
Appeals, before which they maintained that the suit is against the
state.
By the assailed Decision[18] of May 12, 2005, the Court of Appeals
affirmed the trial court's Order. And by Resolution of August 9,
2005, it denied petitioners' motion for reconsideration.
Hence, the instant petition for review which raises the sole issue of
whether the Court of Appeals erred in upholding the denial of
petitioners'
motion
to
dismiss.
The petition fails.
The suability of a government official depends on whether the
official concerned was acting within his official or jurisdictional
capacity, and whether the acts done in the performance of official
functions will result in a charge or financial liability against the
government. In the first case, the Constitution itself assures the
availability of judicial review,[19] and it is the official concerned
who
should
be
impleaded
as
the
proper
party.[20]
In its complaint, respondent sufficiently imputes grave abuse of
discretion against petitioners in their official capacity. Since judicial
review of acts alleged to have been tainted with grave abuse of
discretion is guaranteed by the Constitution, it necessarily follows
that it is the official concerned who should be impleaded as
defendant
or
respondent
in
an
appropriate
suit.[21]

PALISOC & SARMIENTO

Moreover, part of the reliefs prayed for by respondent is the

enjoinment of the implementation, as well as the nullification of the
award to YSS, the grant of which may not be enforced against
individual petitioners and their successors except in their official
capacities
as
officials
of
the
DOH.[22]
As regards petitioner DOH, the defense of immunity from suit will
not avail despite its being an unincorporated agency of the
government, for the only causes of action directed against it are
preliminary injunction and mandamus. Under Section 1, Rule 58[23]
of the Rules of Court, preliminary injunction may be directed
against a party or a court, agency or a person. Moreover, the
defense of state immunity from suit does not apply in causes of
action which do not seek to impose a charge or financial liability
against the State.[24]
As regards individual petitioners' suability for damages, the
following discussion on the applicability of the defense of state
immunity
from
suit
is
relevant.
The rule that a state may not be sued without its consent, now
embodied in Section 3, Article XVI of the 1987 Constitution, is one
of the generally accepted principles of international law, which we
have now adopted as part of the law of the land.[25]
While the doctrine of state immunity appears to prohibit only suits
against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties.[26] The suit is
regarded as one against the state where satisfaction of the
judgment against the officials will require the state itself to perform
a positive act, such as the appropriation of the amount necessary
to pay the damages awarded against them.[27]
The rule, however, is not so all-encompassing as to be applicable
under all circumstances. Shauf v. Court of Appeals[28] elucidates:
It is a different matter where the public official is made to account
in his capacity as such for acts contrary to law and injurious to the
rights of plaintiff. As was clearly set forth by Justice Zaldivar
in Director of the Bureau of Telecommunications, et al. vs. Aligaen,
etc., et al.,[29] ' Inasmuch as the State authorizes only legal
acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action
against the officials or officers by one whose rights have
been invaded or violated by such acts, for the protection of

169 | P a g e

his rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a
State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates
or invades the personal and property rights of the plaintiff,
under an unconstitutional act or under an assumption of
authority which he does not have, is not a suit against the
State within the constitutional provision that the State may
not be sued without its consent.' The rationale for this ruling is
that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice. (Emphasis and
underscoring supplied)

SO ORDERED.

Hence, the rule does not apply where the public official is charged
in his official capacity for acts that are unauthorized or unlawful
and injurious to the rights of others. Neither does it apply where the
public official is clearly being sued not in his official capacity but in
his personal capacity, although the acts complained of may have
been committed while he occupied a public position.[30]
In the present case, suing individual petitioners in their personal
capacities for damages in connection with their alleged act of
"illegal[ly] abus[ing] their official positions to make sure that
plaintiff Pharmawealth would not be awarded the Benzathine
contract [which act was] done in bad faith and with full knowledge
of the limits and breadth of their powers given by law"[31] is
permissible, in consonance with the foregoing principles. For an
officer who exceeds the power conferred on him by law cannot hide
behind the plea of sovereign immunity and must bear the liability
personally.[32]
It bears stressing, however, that the statements in the immediately
foregoing paragraph in no way reflect a ruling on the actual liability
of petitioners to respondent. The mere allegation that a
government official is being sued in his personal capacity does not
automatically remove the same from the protection of the doctrine
of state immunity. Neither, upon the other hand, does the mere
invocation of official character suffice to insulate such official from
suability and liability for an act committed without or in excess of
his or her authority.[33] These are matters of evidence which
should be presented and proven at the trial.
WHEREFORE, the petition is DENIED. The assailed Decision dated
May 12, 2005 and Resolution dated August 9, 2005 issued by the
Court
of
Appeals
are AFFIRMED.

PALISOC & SARMIENTO

170 | P a g e

GEN. AVELINO I. RAZON, JR., Chief, Philippine National

Police
(PNP);
Police
Chief
Superintendent
RAUL
CASTANEDA, Chief, Criminal Investigation and Detection
Group (CIDG); Police Senior Superintendent LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response
(PACER); and GEN. JOEL R. GOLTIAO, Regional Director of
ARMM, PNP, Petitioners, versus MARY JEAN B. TAGITIS,
herein represented by ATTY. FELIPE P. ARCILLA, JR.,
Attorney-in-Fact, Respondent
G.R. No. 182498 | 2009-12-03
DECISION
BRION, J.:
We review in this petition for review on certiorari[1] the decision
dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R.
AMPARO No. 00009.[2] This CA decision confirmed the enforced
disappearance of Engineer Morced N. Tagitis (Tagitis)aand granted
the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis
(respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED.
The Court hereby FINDS that this is an "enforced disappearance"
within the meaning of the United Nations instruments, as used in
the Amparo Rules. The privileges of the writ of amparo are hereby
extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief,
Criminal Investigation and Detention Group (CIDG) who should
order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to
aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who
should order his men, namely: (a) respondent GEN. JOEL GOLTIAO,
Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head
of TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency
Response, to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the
life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his
family, and to submit a monthly report of their actions to this Court,
as a way of PERIODIC REVIEW to enable this Court to monitor the
action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and as
to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force
Comet, Zamboanga City, both being with the military, which is a

PALISOC & SARMIENTO

separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo - a
protective remedy against violations or threats of violation against
the rights to life, liberty and security.[3] It embodies, as a remedy,
the court's directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in
this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate
remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to
have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court
shall craft, among them, the directive to file the appropriate
criminal and civil cases against the responsible parties in the
proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without
bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or
those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced
disappearance. In all these cases, the issuance of the Writ of
Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his
liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to
stress that the unique situations that call for the issuance of the
writ, as well as the considerations and measures necessary to
address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions and
proceedings. In this sense, the Rule on the Writ of Amparo[4]
(Amparo Rule) issued by this Court is unique. The Amparo Rule
should be read, too, as a work in progress, as its directions and
finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the
case, are summarized below.

171 | P a g e

The established facts show that Tagitis, a consultant for the World
Bank and the Senior Honorary Counselor for the Islamic
Development Bank (IDB) Scholarship Programme, was last seen in
Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB
scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following
day to Zamboanga. When Kunnong returned from this errand,
Tagitis was no longer around.[5] The receptionist related that Tagitis
went out to buy food at around 12:30 in the afternoon and even left
his room key with the desk.[6] Kunnong looked for Tagitis and even
sent a text message to the latter's Manila-based secretary who did
not know of Tagitis' whereabouts and activities either; she advised
Kunnong to simply wait.[7]
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N.
Matli, a UP professor of Muslim studies and Tagitis' fellow student
counselor at the IDB, reported Tagitis' disappearance to the Jolo
Police Station.[8] On November 7, 2007, Kunnong executed a sworn
affidavit attesting to what he knew of the circumstances
surrounding Tagitis' disappearance.[9]
More than a month later (on December 28, 2007), the respondent
filed a Petition for the Writ of Amparo (petition) with the CA through
her Attorney-in-Fact, Atty. Felipe P. Arcilla.[10] The petition was
directed against Lt. Gen. Alexander Yano, Commanding General,
Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National
Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal
Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.
Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel
Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
Chief, Anti-Terror Task Force Comet [collectively referred to as
petitioners]. After reciting Tagitis' personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the
pension house to take his early lunch but while out on the street, a
couple of burly men believed to be police intelligence operatives,
forcibly took him and boarded the latter on a motor vehicle then
sped away without the knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong
returned to the pension house, and was surprised to find out that

PALISOC & SARMIENTO

subject Engr. Tagitis cannot [sic] be contacted by phone and was

not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension
house who [sic] assisted him to open the room of Engr. Tagitis,
where they discovered that the personal belongings of Engr. Tagitis,
including cell phones, documents and other personal belongings
were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought
the help of another IDB scholar and reported the matter to the local
police agency;
11. Arsimin Kunnong including his friends and companions in Jolo,
exerted efforts in trying to locate the whereabouts of Engr. Tagitis
and when he reported the matter to the police authorities in Jolo,
he was immediately given a ready answer that Engr. Tagitis could
have been abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of
the police officers, Kunnong reported the matter to the
[respondent, wife of Engr. Tagitis] by phone and other responsible
officers and coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of ARMM who
was then preparing to attend the OIC meeting in Jeddah, Saudi
Arabia;
13. [Respondent], on the other hand, approached some of her coemployees with the Land Bank in Digos branch, Digos City, Davao
del Sur who likewise sought help from some of their friends in the
military who could help them find/locate the whereabouts of her
husband;
14. All of these efforts of the [respondent] did not produce any
positive results except the information from persons in the military
who do not want to be identified that Engr. Tagitis is in the hands of
the uniformed men;
15. According to reliable information received by the [respondent],
subject Engr. Tagitis is in the custody of police intelligence
operatives, specifically with the CIDG, PNP Zamboanga City, being
held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;
xxxx

172 | P a g e

17. [Respondent] filed her complaint with the PNP Police Station in
the ARMM in Cotobato and in Jolo, as suggested by her friends,
seeking their help to find her husband, but [respondent's] request
and pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an
intriguing tale by the police that her husband, subject of the
petition, was not missing but was with another woman having good
time somewhere, which is a clear indication of the [petitioners']
refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release
and/or turn-over subject Engr. Tagitis to his family or even to
provide truthful information to [the respondent] of the subject's
whereabouts, and/or allow [the respondent] to visit her husband
Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;
20. Lately, [the respondent] was again advised by one of the
[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including [those] in Davao City, in Zamboanga City, in Jolo, and in
Camp Crame, Quezon City, and all these places have been visited
by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and
relatives only to try complying [sic] to the different suggestions of
these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with]
the sufferings undergone by the [respondent], informed her that
they are not the proper persons that she should approach, but
assured her not to worry because her husband is [sic] in good
hands;
22. The unexplained uncooperative behavior of the [petitioners] to
the [respondent's] request for help and failure and refusal of the
[petitioners] to extend the needed help, support and assistance in
locating the whereabouts of Engr. Tagitis who had been declared
missing since October 30, 2007 which is almost two (2) months
now, clearly indicates that the [petitioners] are actually in physical
possession and custody of [respondent's] husband, Engr. Tagitis;
xxxx

PALISOC & SARMIENTO

25. [The respondent] has exhausted all administrative avenues and

remedies but to no avail, and under the circumstances, [the
respondent] has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of the [petitioners], their intelligence operatives and
the like which are in total violation of the subject's human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
[Emphasis supplied]
On the same day the petition was filed, the CA immediately issued
the Writ of Amparo, set the case for hearing on January 7, 2008,
and directed the petitioners to file their verified return within
seventy-two (72) hours from service of the writ.[11]
In their verified Return filed during the hearing of January 27, 2008,
the petitioners denied any involvement in or knowledge of Tagitis'
alleged abduction. They argued that the allegations of the petition
were incomplete and did not constitute a cause of action against
them; were baseless, or at best speculative; and were merely
based on hearsay evidence. [12]
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the
Return, stated that: he did not have any personal knowledge of, or
any participation in, the alleged disappearance; that he had been
designated by President Gloria Macapagal Arroyo as the head of a
special body called TASK FORCE USIG, to address concerns about
extralegal killings and enforced disappearances; the Task Force,
inter alia, coordinated with the investigators and local police, held
case conferences, rendered legal advice in connection to these
cases; and gave the following summary:[13]
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional
Office ARMM submitted a report on the alleged disappearance of
one Engr. Morced Tagitis. According to the said report, the victim
checked-in at ASY Pension House on October 30, 2007 at about
6:00 in the morning and then roamed around Jolo, Sulu with an
unidentified companion. It was only after a few days when the said
victim did not return that the matter was reported to Jolo MPS.
Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said
missing person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the
whereabouts of the person.

173 | P a g e

b) Likewise, the Regional Chief, 9RCIDU submitted a Progress

Report to the Director, CIDG. The said report stated among others
that: subject person attended an Education Development Seminar
set on October 28, 2007 conducted at Ateneo de Zamboanga,
Zamboanga City together with a Prof. Matli. On October 30, 2007,
at around 5:00 o'clock in the morning, Engr. Tagitis reportedly
arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then
billeted at ASY Pension House. At about 6:15 o'clock in the morning
of the same date, he instructed his student to purchase a fast craft
ticket bound for Zamboanga City and will depart from Jolo, Sulu on
October 31, 2007. That on or about 10:00 o'clock in the morning,
Engr. Tagitis left the premises of ASY Pension House as stated by
the cashier of the said pension house. Later in the afternoon, the
student instructed to purchase the ticket arrived at the pension
house and waited for Engr. Tagitis, but the latter did not return. On
its part, the elements of 9RCIDU is now conducting a continuous
case build up and information gathering to locate the whereabouts
of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly
abducted or illegally detained by covert CIDG-PNP Intelligence
Operatives since October 30, 2007, but after diligent and thorough
search, records show that no such person is being detained in CIDG
or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted
all possible efforts, steps and actions available under the
circumstances and continuously search and investigate [sic] the
instant case. This immense mandate, however, necessitates the
indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the
perpetrators to bring them before the bar of justice and secure
their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal,
submitted as well his affidavit, also attached to the Return of the
Writ, attesting that upon receipt of the Writ of Amparo, he caused
the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the
Resolution of the Honorable Special Fourth Division of the Court of
Appeals, I immediately directed the Investigation Division of this

PALISOC & SARMIENTO

Group [CIDG] to conduct urgent investigation on the alleged

enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an
Education Development Seminar on October 28, 2007 at Ateneo de
Zamboanga at Zamboanga City together with Prof. Abdulnasser
Matli. On October 30, 2007, at around six o'clock in the morning he
arrived at Jolo, Sulu. He was assisted by his student identified as
Arsimin Kunnong of the Islamic Development Bank who was also
one of the participants of the said seminar. He checked in at ASY
pension house located [sic] Kakuyagan, Patikul, Sulu on October 30,
2007 with [sic] unidentified companion. At around six o'clock in the
morning of even date, Engr. Tagitis instructed his student to
purchase a fast craft ticket for Zamboanga City. In the afternoon of
the same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was nowhere to
be found anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the police. The CIDG
is not involved in the disappearance of Engr. Morced Tagitis to make
out a case of an enforced disappearance which presupposes a
direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for
a person named Engr. Morced N. Tagitis, who was allegedly
abducted or illegally detained by covert CIDG-PNP Intelligence
Operatives since October 30, 2007 and after a diligent and
thorough research records show that no such person is being
detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances
surrounding Engr. Morced Tagitis [sic] alleged enforced
disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full completion
in order to aid in the prosecution of the person or persons
responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER[15]
Chief PS Supt. Leonardo A. Espina's affidavit which alleged that:
[16]
xxxx
That, I and our men and women in PACER vehemently deny any
participation in the alleged abduction or illegally [sic] detention of
ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact,
nowhere in the writ was mentioned that the alleged abduction was
perpetrated by elements of PACER nor was there any indication

174 | P a g e

that the alleged abduction or illegal detention of ENGR. TAGITIS was

undertaken jointly by our men and by the alleged covert CIDG-PNP
intelligence operatives alleged to have abducted or illegally
detained ENGR. TAGITIS.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R.

Goltiao (Gen. Goltiao), also submitted his affidavit detailing the
actions that he had taken upon receipt of the report on Tagitis'
disappearance, viz:[17]

That I was shocked when I learned that I was implicated in the

alleged disappearance of ENGR. MORCED in my capacity as the
chief PACER [sic] considering that our office, the Police Anti-Crime
and Emergency Response (PACER), a special task force created for
the purpose of neutralizing or eradicating kidnap-for-ransom groups
which until now continue to be one of the menace of our society is
a respondent in kidnapping or illegal detention case. Simply put,
our task is to go after kidnappers and charge them in court and to
abduct or illegally detain or kidnap anyone is anathema to our
mission.

xxxx

That right after I learned of the receipt of the WRIT OF AMPARO, I

directed the Chief of PACER Mindanao Oriental (PACER-MOR) to
conduct pro-active measures to investigate, locate/search the
subject, identify and apprehend the persons responsible, to recover
and preserve evidence related to the disappearance of ENGR.
MORCED TAGITIS, which may aid in the prosecution of the person or
persons responsible, to identify witnesses and obtain statements
from them concerning the disappearance and to determine the
cause, manner, location and time of disappearance as well as any
pattern or practice that may have brought about the
disappearance.
That I further directed the chief of PACER-MOR, Police
Superintendent JOSE ARNALDO BRIONES JR., to submit a written
report regarding the disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent
through fax his written report.
That the investigation and measures being undertaken to
locate/search the subject in coordination with Police Regional
Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and
Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not to
leave any stone unturned so to speak in the investigation until the
perpetrators in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with
the WRIT OF AMPARO just issued.

PALISOC & SARMIENTO

3) For the record:

1. I am the Regional Director of Police Regional Office ARMM now
and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any
cases of reported enforced disappearances and when they are
being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police
Provincial Office reported to me through Radio Message Cite No.
SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30
p.m., a certain Abdulnasser Matli, an employee of Islamic
Development Bank, appeared before the Office of the Chief of
Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development
Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the
company of or taken by any member of the Philippine National
Police but rather he just disappeared from ASY Pension House
situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30,
2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when
Arsimin Kunnong, a student scholar, was requested by him to
purchase a vessel ticket at the Office of Weezam Express, however,
when the student returned back to ASY Pension House, he no
longer found Engr. Tagitis there and when he immediately inquired
at the information counter regarding his whereabouts [sic], the
person in charge in the counter informed him that Engr. Tagitis had
left the premises on October 30, 2007 around 1 o'clock p.m. and
never returned back to his room;
8. Immediately after learning the incident, I called and directed the
Provincial Director of Sulu Police Provincial Office and other units
through phone call and text messages to conduct investigation [sic]
to determine the whereabouts of the aggrieved party and the

175 | P a g e

person or persons responsible for the threat, act or omission, to

recover and preserve evidence related to the disappearance of
Engr. Tagitis, to identify witnesses and obtain statements from
them concerning his disappearance, to determine the cause and
manner of his disappearance, to identify and apprehend the person
or persons involved in the disappearance so that they shall be
brought before a competent court;

10. In compliance to our directives, PD Sulu PPO has exerted his

[sic] efforts to conduct investigation [sic] on the matter to
determine the whereabouts of Engr. Tagitis and the circumstances
related to his disappearance and submitted the following:

9. Thereafter, through my Chief of the Regional Investigation and

Detection Management Division, I have caused the following
directives:

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office

that they are still monitoring the whereabouts of Engr. Tagitis;

a) Radio Message Cite No. RIDMD-1122-07-358 dated November

22, 2007 directing PD Sulu PPO to conduct joint investigation with
CIDG and CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November
28, 2007 directing PD Sulu PPO to expedite compliance to my
previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu
PPO reiterating our series of directives for investigation and
directing him to undertake exhaustive coordination efforts with the
owner of ASY Pension House and student scholars of IDB in order to
secure corroborative statements regarding the disappearance and
whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu
PPO directing him to maximize efforts to establish clues on the
whereabouts of Engr. Tagitis by seeking the cooperation of Prof.
Abdulnasser Matli and Arsimin Kunnong and/or whenever
necessary, for them to voluntarily submit for polygraph
examination with the NBI so as to expunge all clouds of doubt that
they may somehow have knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007 addressed to the
Regional Chief, Criminal Investigation and Detection Group, Police
Regional Office 9, Zamboanga City, requesting assistance to
investigate the cause and unknown disappearance of Engr. Tagitis
considering that it is within their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated
December 30, 2007 addressed to PD Sulu PPO requiring them to
submit complete investigation report regarding the case of Engr.
Tagitis;

PALISOC & SARMIENTO

a) Progress Report dated November 6, 2007 through Radio Message

Cite No. SPNP3-1106-10-2007;

c) Investigation Report dated December 31, 2007 from the Chief of

Police, Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher
Headquarters as shown in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief,
PNP informing him of the facts of the disappearance and the action
being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the
Director, Directorate for Investigation and Detection Management,
NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the
Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr.
Tagitis cannot be determined but our office is continuously
intensifying the conduct of information gathering, monitoring and
coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and
taking note of favorable actions so far taken on the disappearance,
the CA directed Gen. Goltiao - as the officer in command of the area
of disappearance - to form TASK FORCE TAGITIS.[18]
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron
Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS.[19] The CA
subsequently set three hearings to monitor whether TASK FORCE
TAGITIS was exerting "extraordinary efforts" in handling the
disappearance of Tagitis.[20] As planned, (1) the first hearing would
be to mobilize the CIDG, Zamboanga City; (2) the second hearing
would be to mobilize intelligence with Abu Sayyaf and ARMM; and

176 | P a g e

(3) the third hearing would be to mobilize the Chief of Police of Jolo,
Sulu and the Chief of Police of Zamboanga City and other police
operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted
to the CA an intelligence report from PSL Usman S. Pingay, the
Chief of Police of the Jolo Police Station, stating a possible motive
for Tagitis' disappearance.[22] The intelligence report was
apparently based on the sworn affidavit dated January 4, 2008 of
Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary
Student Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu that:[23]
[Based] on reliable information from the Office of Muslim Affairs in
Manila, Tagitis has reportedly taken and carried away... more or less
Five Million Pesos (P5,000,000.00) deposited and entrusted to his ...
[personal] bank accounts by the Central Office of IDB, Jeddah,
Kingdom of Saudi Arabia, which [was] intended for the ... IDB
Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG
was alleged to be responsible, he personally went to the CIDG
office
in
Zamboanga
City
to
conduct
an
ocular
inspection/investigation, particularly of their detention cells.[24] PS
Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently
denied any knowledge or complicity in any abduction.[25] He
further testified that prior to the hearing, he had already mobilized
and given specific instructions to their supporting units to perform
their respective tasks; that they even talked to, but failed to get
any lead from the respondent in Jolo.[26] In his submitted
investigation report dated January 16, 2008, PS Supt. Ajirim
concluded:[27]
9. Gleaned from the undersigned inspection and observation at the
Headquarters 9 RCIDU and the documents at hand, it is my own
initial conclusion that the 9RCIDU and other PNP units in the area
had no participation neither [sic] something to do with [sic]
mysterious disappearance of Engr. Morced Tagitis last October 30,
2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was
reportedly deposited in the personal account of Engr. Tagitis by the
IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it
could might [sic] be done by resentment or sour grape among
students who are applying for the scholar [sic] and were denied

PALISOC & SARMIENTO

which was allegedly conducted/screened by the subject being the

coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic]
presumed that the motive behind the disappearance of the subject
might be due to the funds he maliciously spent for his personal
interest and wanted to elude responsibilities from the institution
where he belong as well as to the Islamic student scholars should
the statement of Prof. Matli be true or there might be a professional
jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the
respondents be dropped and dismissed considering on [sic] the
police and military actions in the area particularly the CIDG are
exerting their efforts and religiously doing their tasked [sic] in the
conduct of its intelligence monitoring and investigation for the early
resolution of this instant case. But rest assured, our office, in
coordination with other law-enforcement agencies in the area, are
continuously and religiously conducting our investigation for the
resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task
Force Tagitis did not appear to be exerting extraordinary efforts in
resolving Tagitis' disappearance on the following grounds:[28]
(1) This Court FOUND that it was only as late as January 28, 2008,
after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM
had requested for clear photographs when it should have been
standard operating procedure in kidnappings or disappearances
that the first agenda was for the police to secure clear pictures of
the missing person, Engr. Morced Tagitis, for dissemination to all
parts of the country and to neighboring countries. It had been three
(3) months since GEN. JOEL GOLTIAO admitted having been
informed on November 5, 2007 of the alleged abduction of Engr.
Morced Tagitis by alleged bad elements of the CIDG. It had been
more than one (1) month since the Writ of Amparo had been issued
on December 28, 2007. It had been three (3) weeks when battle
formation was ordered through Task Force Tagitis, on January 17,
2008. It was only on January 28, 2008 when the Task Force Tagitis
requested for clear and recent photographs of the missing person,
Engr. Morced Tagitis, despite the Task Force Tagitis' claim that they
already had an "all points bulletin", since November 5, 2007, on the
missing person, Engr. Morced Tagitis. How could the police look for
someone who disappeared if no clear photograph had been
disseminated?

177 | P a g e

(2) Furthermore, Task Force Tagitis' COL. AHIROM AJIRIM informed

this Court that P/Supt KASIM was designated as Col. Ahirom Ajirim's
replacement in the latter's official designated post. Yet, P/Supt
KASIM's subpoena was returned to this Court unserved. Since this
Court was made to understand that it was P/Supt KASIM who was
the petitioner's unofficial source of the military intelligence
information that Engr. Morced Tagitis was abducted by bad
elements of the CIDG (par. 15 of the Petition), the close contact
between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE
TAGITIS should have ensured the appearance of Col. KASIM in
response to this court's subpoena and COL. KASIM could have
confirmed the military intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified
on direct examination that she went to Jolo and Zamboanga in her
efforts to locate her husband. She said that a friend from
Zamboanga holding a high position in the military (whom she did
not then identify) gave her information that allowed her to "specify"
her allegations, "particularly paragraph 15 of the petition."[29] This
friend also told her that her husband "[was] in good hands."[30]
The respondent also testified that she sought the assistance of her
former boss in Davao City, Land Bank Bajada Branch Manager Rudy
Salvador, who told her that "PNP CIDG is holding [her husband],
Engineer Morced Tagitis."[31] The respondent recounted that she
went to Camp Katitipan in Davao City where she met Col. Julasirim
Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her
friends (who were then with her) a "highly confidential report" that
contained the "alleged activities of Engineer Tagitis" and informed
her that her husband was abducted because "he is under custodial
investigation" for being a liaison for "J.I. or Jema'ah Islamiah."[32]
On January 17, 2008, the respondent on cross-examination testified
that she is Tagitis' second wife, and they have been married for
thirteen years; Tagitis was divorced from his first wife.[33] She last
communicated with her husband on October 29, 2007 at around
7:31 p.m. through text messaging; Tagitis was then on his way to
Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husband's
disappearance on October 30, 2007 when her stepdaughter,
Zaynah Tagitis (Zaynah), informed her that she had not heard from
her father since the time they arranged to meet in Manila on
October 31, 2007.[35] The respondent explained that it took her a

PALISOC & SARMIENTO

few days (or on November 5, 2007) to personally ask Kunnong to

report her husband's disappearance to the Jolo Police Station, since
she had the impression that her husband could not communicate
with her because his cellular phone's battery did not have enough
power, and that he would call her when he had fully-charged his
cellular phone's battery.[36]
The respondent also identified the high-ranking military friend, who
gave her the information found in paragraph 15 of her petition, as
Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp
Karingal, Zamboanga through her boss.[37] She also testified that
she was with three other people, namely, Mrs. Marydel Martin
Talbin and her two friends from Mati City, Davao Oriental, when Col.
Kasim read to them the contents of the "highly confidential report"
at Camp Katitipan, Davao City. The respondent further narrated
that the report indicated that her husband met with people
belonging to a terrorist group and that he was under custodial
investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the
Colonel relay to the persons holding him the need to give him his
medication.[38]
On February 11, 2008, TASK FORCE TAGITIS submitted two
narrative reports,[39] signed by the respondent, detailing her
efforts to locate her husband which led to her meetings with Col.
Ancanan of the Philippine Army and Col. Kasim of the PNP. In her
narrative report concerning her meeting with Col. Ancanan, the
respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend
Mrs. Marydel Talbin. Our flight from Davao City is 9:00 o'clock in the
morning; we arrived at Zamboanga Airport at around 10:00 o'clock.
We [were] fetched by the two staffs of Col. Ancanan. We
immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan.
He interviewed me and got information about the personal
background of Engr. Morced N. Tagitis. After he gathered all
information, he revealed to us the contents of text messages they
got from the cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to his daughter
Zaynah Tagitis was that she was not allowed to answer any
telephone calls in his condominium unit.
While we were there he did not tell us any information of the
whereabouts of Engr. Tagitis. After the said meeting with Col.

178 | P a g e

Ancanan, he treated us as guests to the city. His two staffs

accompanied us to the mall to purchase our plane ticket going back
to Davao City on November 12, 2007.

After a few weeks, Mr. Salvador called me up informing me up

informing me that I am to go to Camp Katitipan to meet Col. Kasim
for he has an urgent, confidential information to reveal.

When we arrived in Davao City on November 12, 2007 at 9:00 in

the morning, Col. Ancanan and I were discussing some points
through phone calls. He assured me that my husband is alive and
he's last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his
given statements of the whereabouts of my husband, because I
contacted some of my friends who have access to the groups of
MILF, MNLF and ASG. I called up Col. Ancanan several times
begging to tell me the exact location of my husband and who held
him but he refused.

On November 24, 2007, we went back to Camp Katitipan with my

three friends. That was the time that Col. Kasim read to us the
confidential report that Engr. Tagitis was allegedly connected [with]
different terrorist [groups], one of which he mentioned in the report
was OMAR PATIK and a certain SANTOS - a Balik Islam.

While I was in Jolo, Sulu on November 30, 2007, I called him up

again because the PNP, Jolo did not give me any information of the
whereabouts of my husband. Col. Ancanan told me that "Sana
ngayon alam mo na kung saan ang kinalalagyan ng asawa mo."
When I was in Zamboanga, I was thinking of dropping by the office
of Col. Ancanan, but I was hesitant to pay him a visit for the reason
that the Chief of Police of Jolo told me not to contact any AFP
officials and he promised me that he can solve the case of my
husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of
my husband Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as
follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines,
Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him
that my husband, Engineer Morced Tagitis was presumed to be
abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to
contact his connections in the military in Jolo, Sulu where the
abduction of Engr. Tagitis took place. Mr. Salvador immediately
called up Camp Katitipan located in Davao City looking for highranking official who can help me gather reliable information behind
the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza,
Executive Secretary, accompanied me to Camp Katitipan to meet
Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a
short conversation. And he assured me that he'll do the best he can
to help me find my husband.

PALISOC & SARMIENTO

It is also said that Engr. Tagitis is carrying boxes of medicines for

the injured terrorists as a supplier. These are the two information
that I can still remember. It was written in a long bond paper with
PNP Letterhead. It was not shown to us, yet Col. Kasim was the one
who read it for us.
He asked a favor to me that "Please don't quote my Name!
Because this is a raw report." He assured me that my husband is
alive and he is in the custody of the military for custodial
investigation. I told him to please take care of my husband because
he has aliments and he recently took insulin for he is a diabetic
patient.
In my petition for writ of amparo, I emphasized the information that
I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel
Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding
her efforts to locate her husband, in relation particularly with the
information she received from Col. Kasim. Mrs. Talbin testified that
she was with the respondent when she went to Zamboanga to see
Col. Ancanan, and to Davao City at Camp Katitipan to meet Col.
Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col.
Ancanan, who told them that there was a report and that he
showed them a series of text messages from Tagitis' cellular phone,
which showed that Tagitis and his daughter would meet in Manila
on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she
went with the respondent together with two other companions,
namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to
talk to Col. Kasim.[44] The respondent asked Col. Kasim if he knew
the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis
was in good hands, although he was not certain whether he was
with the PNP or with the Armed Forces of the Philippines (AFP). She

179 | P a g e

further recounted that based on the report Col. Kasim read in their
presence, Tagitis was under custodial investigation because he was
being charged with terrorism; Tagitis in fact had been under
surveillance since January 2007 up to the time he was abducted
when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told
them that he could not give a copy of the report because it was a
"raw report."[45] She also related that the Col. Kasim did not tell
them exactly where Tagitis was being kept, although he mentioned
Talipapao, Sulu.Prof., lalabas din yan."[50] Prof. Matli also
emphasized that despite what his January 4, 2008 affidavit
indicated,[51] he never told PS Supt. Pingay, or made any
accusation, that Tagitis took away money entrusted to him.[52]
Prof. Matli confirmed, however, that that he had received an e-mail
report[53] from Nuraya Lackian of the Office of Muslim Affairs in
Manila that the IDB was seeking assistance of the office in locating
the funds of IDB scholars deposited in Tagitis' personal account.
[54]
On cross-examination by the respondent's counsel, Prof. Matli
testified that his January 4, 2008 affidavit was already prepared
when PS Supt. Pingay asked him to sign it.[55] Prof Matli clarified
that although he read the affidavit before signing it, he "was not so
much aware of... [its] contents."[56]
On February 11, 2008, the petitioners presented Col. Kasim to rebut
material portions of the respondent's testimony, particularly the
allegation that he had stated that Tagitis was in the custody of
either the military or the PNP.[57] Col. Kasim categorically denied
the statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as
supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that
"your husband is in good hands" and is "probably taken cared of by
his armed abductors;" and (3) that Tagitis was under custodial
investigation by the military, the PNP or the CIDG Zamboanga City.
[58] Col. Kasim emphasized that the "informal letter" he received
from his informant in Sulu did not indicate that Tagitis was in the
custody of the CIDG.[59] He also stressed that the information he
provided to the respondent was merely a "raw report" sourced from
"barangay intelligence" that still needed confirmation and "followup" as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he
gave the respondent was given to him by his informant, who was a
"civilian asset," through a letter which he considered as
"unofficial."[61] Col. Kasim stressed that the letter was only meant

PALISOC & SARMIENTO

for his "consumption" and not for reading by others.[62] He

testified further that he destroyed the letter right after he read it to
the respondent and her companions because "it was not important
to him" and also because the information it contained had no
importance in relation with the abduction of Tagitis.[63] He
explained that he did not keep the letter because it did not contain
any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction.[64]
In the same hearing on February 11, 2008, the petitioners also
presented Police Senior Superintendent Jose Volpane Pante (Col.
Pante), Chief of the CIDG-9, to disprove the respondent's allegation
that Tagitis was in the custody of CIDG-Zamboanga City.[65] Col.
Pante clarified that the CIDG was the "investigative arm" of the
PNP, and that the CIDG "investigates and prosecutes all cases
involving violations in the Revised Penal Code particularly those
considered as heinous crimes."[66] Col. Pante further testified that
the allegation that 9 RCIDU personnel were involved in the
disappearance of Tagitis was baseless, since they did not conduct
any operation in Jolo, Sulu before or after Tagitis' reported
disappearance.[67] Col. Pante added that the four (4) personnel
assigned to the Sulu CIDT had no capability to conduct any
"operation," since they were only assigned to investigate matters
and to monitor the terrorism situation.[68] He denied that his office
conducted any surveillance on Tagitis prior to the latter's
disappearance.[69] Col. Pante further testified that his investigation
of Tagitis' disappearance was unsuccessful; the investigation was
"still facing a blank wall" on the whereabouts of Tagitis.[70]
THE CA RULING
On March 7, 2008, the CA issued its decision[71] confirming that
the disappearance of Tagitis was an "enforced disappearance"
under the United Nations (UN) Declaration on the Protection of All
Persons from Enforced Disappearances.[72] The CA ruled that when
military intelligence pinpointed the investigative arm of the PNP
(CIDG) to be involved in the abduction, the missing-person case
qualified as an enforced disappearance. The conclusion that the
CIDG was involved was based on the respondent's testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the
information that the CIDG, as the police intelligence arm, was
involved in Tagitis' abduction came from no less than the military an independent agency of government. The CA thus greatly relied
on the "raw report" from Col. Kasim's asset, pointing to the CIDG's
involvement in Tagitis' abduction. The CA held that "raw reports"
from an "asset" carried "great weight" in the intelligence world. It
also labeled as "suspect" Col. Kasim's subsequent and belated

180 | P a g e

retraction of his staatement that the military, the police, or the

CIDG was involved in the abduction of Tagitis.

ruling that the respondent discharged the burden of proving the

allegations of the petition by substantial evidence.[74]

The CA characterized as "too farfetched and unbelievable" and "a

bedlam of speculation" police theories painting the disappearance
as "intentional" on the part of Tagitis. He had no previous brushes
with the law or any record of overstepping the bounds of any trust
regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she
did not get his or her stipend. The CA also found no basis for the
police theory that Tagitis was "trying to escape from the clutches of
his second wife," on the basis of the respondent's testimony that
Tagitis was a Muslim who could have many wives under the Muslim
faith, and that there was "no issue" at all when the latter divorced
his first wife in order to marry the second. Finally, the CA also ruled
out kidnapping for ransom by the Abu Sayyaf or by the ARMM
paramilitary as the cause for Tagitis' disappearance, since the
respondent, the police and the military noted that there was no
acknowledgement of Tagitis' abduction or demand for payment of
ransom - the usual modus operandi of these terrorist groups.

THE COURT'S RULING

Based on these considerations, the CA thus extended the privilege

of the writ to Tagitis and his family, and directed the CIDG Chief,
Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force
Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER
Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence
and efforts to protect the life, liberty and security of Tagitis, with
the obligation to provide monthly reports of their actions to the CA.
At the same time, the CA dismissed the petition against the then
respondents from the military, Lt. Gen Alexander Yano and Gen.
Ruben Rafael, based on the finding that it was PNP-CIDG, not the
military, that was involved.

3) allege that the abduction was committed at the petitioners'

instructions or with their consent;

On March 31, 2008, the petitioners moved to reconsider the CA

decision, but the CA denied the motion in its Resolution of April 9,
2008.[73]

7) specify what legally available efforts she took to determine the

fate or whereabouts of her husband.

THE PETITION
In this Rule 45 appeal questioning the CA's March 7, 2008 decision,
the petitioners mainly dispute the sufficiency in form and substance
of the Amparo petition filed before the CA; the sufficiency of the
legal remedies the respondent took before petitioning for the writ;
the finding that the rights to life, liberty and security of Tagitis had
been violated; the sufficiency of evidence supporting the conclusion
that Tagitis was abducted; the conclusion that the CIDG
Zamboanga was responsible for the abduction; and, generally, the

PALISOC & SARMIENTO

We do not find the petition meritorious.

Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondent's Amparo petition, the petitioners contend that the
petition violated Section 5(c), (d), and (e) of the Amparo Rule.
Specifically, the petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners committed in violation
of Tagitis' rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the
persons responsible for his disappearance, and the respondent's
source of information;

4) implead the members of CIDG regional office in Zamboanga

alleged to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis'
disappearance; and

A petition for the Writ of Amparo shall be signed and verified and
shall allege, among others (in terms of the portions the petitioners
cite):[75]
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or omission
of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating

181 | P a g e

authority or individuals, as well as the manner and conduct of the

investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine
the fate or whereabouts of the aggrieved party and the identity of
the person responsible for the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be
complete in every detail in stating the threatened or actual
violation of a victim's rights. As in any other initiatory pleading, the
pleader must of course state the ultimate facts constituting the
cause of action, omitting the evidentiary details.[76] In an Amparo
petition, however, this requirement must be read in light of the
nature and purpose of the proceeding, which addresses a situation
of uncertainty; the petitioner may not be able to describe with
certainty how the victim exactly disappeared, or who actually acted
to kidnap, abduct or arrest him or her, or where the victim is
detained, because these information may purposely be hidden or
covered up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision that
the petitioners apparently want to read into the Amparo Rule is to
make this Rule a token gesture of judicial concern for violations of
the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading the
petition should be to determine whether it contains the details
available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victim's
rights to life, liberty and security through State or private party
action. The petition should likewise be read in its totality, rather
than in terms of its isolated component parts, to determine if the
required elements - namely, of the disappearance, the State or
private action, and the actual or threatened violations of the rights
to life, liberty or security - are present.
In the present case, the petition amply recites in its paragraphs 4 to
11 the circumstances under which Tagitis suddenly dropped out of
sight after engaging in normal activities, and thereafter was
nowhere to be found despite efforts to locate him. The petition
alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives
were the perpetrators of the abduction. It also clearly alleged how
Tagitis' rights to life, liberty and security were violated when he was
"forcibly taken and boarded on a motor vehicle by a couple of burly
men believed to be police intelligence operatives," and then taken
"into custody by the respondents' police intelligence operatives

PALISOC & SARMIENTO

since October 30, 2007, specifically by the CIDG, PNP Zamboanga

City, x x x held against his will in an earnest attempt of the police
to involve and connect [him] with different terrorist groups."[77]
These allegations, in our view, properly pleaded ultimate facts
within the pleader's knowledge about Tagitis' disappearance, the
participation by agents of the State in this disappearance, the
failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation
of his right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its
lack of supporting affidavit, as required by Section 5(c) of the
Amparo Rule. Owing to the summary nature of the proceedings for
the writ and to facilitate the resolution of the petition, the Amparo
Rule incorporated the requirement for supporting affidavits, with
the annotation that these can be used as the affiant's direct
testimony.[78] This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition
if not strictly followed. Where, as in this case, the petitioner has
substantially complied with the requirement by submitting a
verified petition sufficiently detailing the facts relied upon, the strict
need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required
affidavits was fully cured when the respondent and her witness
(Mrs. Talbin) personally testified in the CA hearings held on January
7 and 17 and February 18, 2008 to swear to and flesh out the
allegations of the petition. Thus, even on this point, the petition
cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of
an alleged disappearance must have been made, specifying the
manner and results of the investigation. Effectively, this
requirement seeks to establish at the earliest opportunity the level
of diligence the public authorities undertook in relation with the
reported disappearance.[79]
We reject the petitioners' argument that the respondent's petition
did not comply with the Section 5(d) requirements of the Amparo
Rule, as the petition specifies in its paragraph 11 that Kunnong and
his companions immediately reported Tagitis' disappearance to the
police authorities in Jolo, Sulu as soon as they were relatively
certain that he indeed had disappeared. The police, however, gave
them the "ready answer" that Tagitis could have been abducted by
the Abu Sayyaf group or other anti-government groups. The
respondent also alleged in paragraphs 17 and 18 of her petition

182 | P a g e

that she filed a "complaint" with the PNP Police Station in Cotobato
and in Jolo, but she was told of "an intriguing tale" by the police
that her husband was having "a good time with another woman."
The disappearance was alleged to have been reported, too, to no
less than the Governor of the ARMM, followed by the respondent's
personal inquiries that yielded the factual bases for her petition.
[80]
These allegations, to our mind, sufficiently specify that reports have
been made to the police authorities, and that investigations should
have followed. That the petition did not state the manner and
results of the investigation that the Amparo Rule requires, but
rather generally stated the inaction of the police, their failure to
perform their duty to investigate, or at the very least, their reported
failed efforts, should not be a reflection on the completeness of the
petition. To require the respondent to elaborately specify the
names, personal circumstances, and addresses of the investigating
authority, as well the manner and conduct of the investigation is an
overly strict interpretation of Section 5(d), given the respondent's
frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the
allegations of the petition on the investigations undertaken are
sufficiently complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is not supported by sufficient allegations to
constitute a proper cause of action - as a means to "fish" for
evidence.[81] The petitioners contend that the respondent's
petition did not specify what "legally available efforts were taken by
the respondent," and that there was an "undue haste" in the filing
of the petition when, instead of cooperating with authorities, the
respondent immediately invoked the Court's intervention.
We do not see the respondent's petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the
respondent in the present case) allege "the actions and recourses
taken to determine the fate or whereabouts of the aggrieved party
and the identity of the person responsible for the threat, act or
omission." The following allegations of the respondent's petition
duly outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the
pension house to take his early lunch but while out on the street, a

PALISOC & SARMIENTO

couple of burly men believed to be police intelligence operatives,

forcibly took him and boarded the latter on a motor vehicle then
sped away without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought
the help of another IDB scholar and reported the matter to the local
police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo,
exerted efforts in trying to locate the whereabouts of Engr. Tagitis
and when he reported the matter to the police authorities in Jolo,
he was immediately given a ready answer that Engr. Tagitis could
[have been] abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the
police officers, Kunnong reported the matter to the [respondent]
(wife of Engr. Tagitis) by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the Philippines
who alerted the office of the Governor of ARMM who was then
preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her
co-employees with the Land Bank in Digos branch, Digos City,
Davao del Sur, who likewise sought help from some of their friends
in the military who could help them find/locate the whereabouts of
her husband;
xxxx
15. According to reliable information received by the [respondent],
subject Engr. Tagitis is in the custody of police intelligence
operatives, specifically with the CIDG, PNP Zamboanga City, being
held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station
at the ARMM in Cotobato and in Jolo, as suggested by her friends,
seeking their help to find her husband, but [the respondent's]
request and pleadings failed to produce any positive results
xxxx

183 | P a g e

20. Lately, [respondent] was again advised by one of the

[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including the police headquarters in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places
have been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help
from friends and relatives only to try complying to the different
suggestions of these police officers, despite of which, her efforts
produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and
remedies but to no avail, and under the circumstances,
[respondent] has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of [the petitioners], their intelligence operatives and
the like which are in total violation of the subject's human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent's
petition for the Writ of Amparo is sufficient in form and substance
and that the Court of Appeals had every reason to proceed with its
consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and
application of the Rule on the Writ of Amparo in an enforced
disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a
brief look at the historical context of the writ and enforced
disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State
action first attracted notice in Adolf Hitler's Nact und Nebel Erlass
or Night and Fog Decree of December 7, 1941.[82] The Third
Reich's Night and Fog Program, a State policy, was directed at
persons in occupied territories "endangering German security";
they were transported secretly to Germany where they disappeared
without a trace. In order to maximize the desired intimidating
effect, the policy prohibited government officials from providing
information about the fate of these targeted persons.[83]

PALISOC & SARMIENTO

In the mid-1970s, the phenomenon of enforced disappearances

resurfaced, shocking and outraging the world when individuals,
numbering anywhere from 6,000 to 24,000, were reported to have
"disappeared" during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an
international concern when the world noted its widespread and
systematic use by State security forces in that continent under
Operation Condor[84] and during the Dirty War[85] in the 1970s
and 1980s. The escalation of the practice saw political activists
secretly arrested, tortured, and killed as part of governments'
counter-insurgency campaigns. As this form of political brutality
became routine elsewhere in the continent, the Latin American
media standardized the term "disappearance" to describe the
phenomenon. The victims of enforced disappearances were called
the "desaparecidos,"[86] which literally means the "disappeared
ones."[87] In general, there are three different kinds of
"disappearance" cases:
1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an
appropriate warrant and held in complete isolation for weeks or
months while their families are unable to discover their
whereabouts and the military authorities deny having them in
custody until they eventually reappear in one detention center or
another; and
3) those of victims of "salvaging" who have disappeared until their
lifeless bodies are later discovered.[88]
In the Philippines, enforced disappearances generally fall within the
first two categories,[89] and 855 cases were recorded during the
period of martial law from 1972 until 1986. Of this number, 595
remained missing, 132 surfaced alive and 127 were found dead.
During former President Corazon C. Aquino's term, 820 people were
reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced
alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos'
term when only 87 cases were reported, while the three-year term
of former President Joseph E. Estrada yielded 58 reported cases.
KARAPATAN, a local non-governmental organization, reports that as
of March 31, 2008, the records show that there were a total of 193
victims of enforced disappearance under incumbent President
Gloria M. Arroyo's administration. The Commission on Human
Rights' records show a total of 636 verified cases of enforced

184 | P a g e

disappearances from 1985 to 1993. Of this number, 406 remained

missing, 92 surfaced alive, 62 were found dead, and 76 still have
undetermined status.[90] Currently, the United Nations Working
Group on Enforced or Involuntary Disappearance[91] reports 619
outstanding cases of enforced or involuntary disappearances
covering the period December 1, 2007 to November 30, 2008.[92]
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover
extralegal killings and enforced disappearances or threats
thereof."[93] We note that although the writ specifically covers
"enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court
Committee on the Revision of Rules (Committee) reveal that the
drafters of the Amparo Rule initially considered providing an
elemental definition of the concept of enforced disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should
come up or formulate a specific definition [for] extrajudicial killings
and enforced disappearances. From that definition, then we can
proceed to formulate the rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: ... As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances... so initially also
we have to [come up with] the nature of these extrajudicial killings
and enforced disappearances [to be covered by the Rule] because
our concept of killings and disappearances will define the
jurisdiction of the courts. So we'll have to agree among ourselves
about the nature of killings and disappearances for instance, in
other jurisdictions, the rules only cover state actors. That is an
element incorporated in their concept of extrajudicial killings and
enforced disappearances. In other jurisdictions, the concept
includes acts and omissions not only of state actors but also of non
state actors. Well, more specifically in the case of the Philippines
for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or
the leftist organizations and others. So, again we need to define the
nature of the extrajudicial killings and enforced disappearances
that will be covered by these rules. [Emphasis supplied] [95]
In the end, the Committee took cognizance of several bills filed in
the House of Representatives[96] and in the Senate[97] on
extrajudicial killings and enforced disappearances, and resolved to
do away with a clear textual definition of these terms in the Rule.
The Committee instead focused on the nature and scope of the

PALISOC & SARMIENTO

concerns within its power to address and provided the appropriate

remedy therefor, mindful that an elemental definition may intrude
into the ongoing legislative efforts.[98]
As the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized
separately from the component criminal acts undertaken to carry
out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.[99] The
simple reason is that the Legislature has not spoken on the matter;
the determination of what acts are criminal and what the
corresponding penalty these criminal acts should carry are matters
of substantive law that only the Legislature has the power to enact
under the country's constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on
extra-judicial killings and enforced disappearances, however, the
Supreme Court is not powerless to act under its own constitutional
mandate to promulgate "rules concerning the protection and
enforcement of constitutional rights, pleading, practice and
procedure in all courts,"[100] since extrajudicial killings and
enforced disappearances, by their nature and purpose, constitute
State or private party violation of the constitutional rights of
individuals to life, liberty and security. Although the Court's power
is strictly procedural and as such does not diminish, increase or
modify substantive rights, the legal protection that the Court can
provide can be very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced disappearances. The
Court, through its procedural rules, can set the procedural
standards and thereby directly compel the public authorities to act
on actual or threatened violations of constitutional rights. To state
the obvious, judicial intervention can make a difference - even if
only procedurally - in a situation when the very same investigating
public authorities may have had a hand in the threatened or actual
violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once
again that we do not rule on any issue of criminal culpability for the
extrajudicial killing or enforced disappearance. This is an issue that
requires criminal action before our criminal courts based on our
existing penal laws. Our intervention is in determining whether an
enforced disappearance has taken place and who is responsible or
accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public
authorities to discharge in these situations, under the Rule on the
Writ of Amparo, is twofold. The first is to ensure that all efforts at
disclosure and investigation are undertaken under pain of indirect

185 | P a g e

contempt from this Court when governmental efforts are less than
what the individual situations require. The second is to address the
disappearance, so that the life of the victim is preserved and his or
her liberty and security restored. In these senses, our orders and
directives relative to the writ are continuing efforts that are not
truly terminated until the extrajudicial killing or enforced
disappearance is fully addressed by the complete determination of
the fate and the whereabouts of the victim, by the production of
the disappeared person and the restoration of his or her liberty and
security, and, in the proper case, by the commencement of criminal
action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights.
[101] It does not only violate the right to life, liberty and security of
the desaparecido; it affects their families as well through the denial
of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have
been said to be "a double form of torture," with "doubly paralyzing
impact for the victims," as they "are kept ignorant of their own
fates, while family members are deprived of knowing the
whereabouts of their detained loved ones" and suffer as well the
serious economic hardship and poverty that in most cases follow
the disappearance of the household breadwinner.[102]
The UN General Assembly first considered the issue of
"Disappeared Persons" in December 1978 under Resolution 33/173.
The Resolution expressed the General Assembly's deep concern
arising from "reports from various parts of the world relating to
enforced or involuntary disappearances," and requested the "UN
Commission on Human Rights to consider the issue of enforced
disappearances
with
a
view
to
making
appropriate
recommendations."[103]
In 1992, in response to the reality that the insidious practice of
enforced disappearance had become a global phenomenon, the UN
General Assembly adopted the Declaration on the Protection of All
Persons from Enforced Disappearance (Declaration).[104] This
Declaration, for the first time, provided in its third preambular
clause a working description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent
manner, enforced disappearances occur, in the sense that persons
are arrested, detained or abducted against their will or otherwise

PALISOC & SARMIENTO

deprived of their liberty by officials of different branches or levels of

Government, or by organized groups or private individuals acting
on behalf of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to disclose
the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such
persons outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General
Assembly adopted the International Convention for the Protection
of All Persons from Enforced Disappearance (Convention).[105] The
Convention was opened for signature in Paris, France on February
6, 2007.[106] Article 2 of the Convention defined enforced
disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is
considered to be the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person
outside the protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to
assert that there is a right not to be subject to enforced
disappearance[107] and that this right is non-derogable.[108] It
provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties to
codify enforced disappearance as an offense punishable with
appropriate penalties under their criminal law.[109] It also
recognizes the right of relatives of the disappeared persons and of
the society as a whole to know the truth on the fate and
whereabouts of the disappeared and on the progress and results of
the investigation.[110] Lastly, it classifies enforced disappearance
as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established.
[111]
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the
Convention, so that the country is not yet committed to enact any
law penalizing enforced disappearance as a crime. The absence of
a specific penal law, however, is not a stumbling block for action

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from this Court, as heretofore mentioned; underlying every

enforced disappearance is a violation of the constitutional rights to
life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms),
the Court is guided, in acting on Amparo cases, by the reality that
the Philippines is a member of the UN, bound by its Charter and by
the various conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN Charter, the
Philippines pledged to "promote universal respect for, and
observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or religion."[112]
Although no universal agreement has been reached on the precise
extent of the "human rights and fundamental freedoms"
guaranteed to all by the Charter,[113] it was the UN itself that
issued the Declaration on enforced disappearance, and this
Declaration states:[114]
Any act of enforced disappearance is an offence to dignity. It is
condemned as a denial of the purposes of the Charter of the United
Nations and as a grave and flagrant violation of human rights and
fundamental freedoms proclaimed in the Universal Declaration of
Human Rights and reaffirmed and developed in international
instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a
policy matter made in a UN Declaration, the ban on enforced
disappearance cannot but have its effects on the country, given our
own adherence to "generally accepted principles of international
law as part of the law of the land."[115]
In the recent case of Pharmaceutical and Health Care Association of
the Philippines v. Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of
the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an
international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of
domestic law. [Emphasis supplied]
We characterized "generally accepted principles of international
law" as norms of general or customary international law that are
binding on all states. We held further:[117]

PALISOC & SARMIENTO

[G]enerally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements:
the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. [Emphasis
in the original]
The most widely accepted statement of sources of international law
today is Article 38(1) of the Statute of the International Court of
Justice, which provides that the Court shall apply "international
custom, as evidence of a general practice accepted as law."[118]
The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in
treaties and other international instruments, a pattern of treaties in
the same form, the practice of international organs, and resolutions
relating to legal questions in the UN General Assembly.[119]
Sometimes referred to as "evidence" of international law,[120]
these sources identify the substance and content of the obligations
of States and are indicative of the "State practice" and "opinio juris"
requirements of international law.[121] We note the following in
these respects:
First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted
the Inter-American Convention on Enforced Disappearance of
Persons in June 1994.[122] State parties undertook under this
Convention "not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or
suspension of individual guarantees."[123] One of the key
provisions includes the States' obligation to enact the crime of
forced disappearance in their respective national criminal laws and
to establish jurisdiction over such cases when the crime was
committed within their jurisdiction, when the victim is a national of
that State, and "when the alleged criminal is within its territory and
it does not proceed to extradite him," which can be interpreted as
establishing universal jurisdiction among the parties to the InterAmerican Convention.[124] At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined
activities involving enforced disappearance to be criminal.[125]

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Second, in Europe, the European Convention on Human Rights has

no explicit provision dealing with the protection against enforced
disappearance. The European Court of Human Rights (ECHR),
however, has applied the Convention in a way that provides ample
protection for the underlying rights affected by enforced
disappearance through the Convention's Article 2 on the right to
life; Article 3 on the prohibition of torture; Article 5 on the right to
liberty and security; Article 6, paragraph 1 on the right to a fair
trial; and Article 13 on the right to an effective remedy. A leading
example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,[126] where the ECHR found a violation
of the right to liberty and security of the disappeared person when
the applicant's son disappeared after being taken into custody by
Turkish forces in the Kurdish village of Agilli in November 1993. It
further found the applicant (the disappeared person's mother) to be
a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful
investigation by the State as a violation of Article 13.[127]
Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized
in the most recent edition of Restatement of the Law: The Third,
[128] which provides that "[a] State violates international law if, as
a matter of State policy, it practices, encourages, or condones... (3)
the murder or causing the disappearance of individuals."[129] We
significantly note that in a related matter that finds close
identification with enforced disappearance - the matter of torture the United States Court of Appeals for the Second Circuit Court held
in Filartiga v. Pena-Irala[130] that the prohibition on torture had
attained the status of customary international law. The court
further elaborated on the significance of UN declarations, as
follows:
These U.N. declarations are significant because they specify with
great precision the obligations of member nations under the
Charter. Since their adoption, "(m)embers can no longer contend
that they do not know what human rights they promised in the
Charter to promote." Moreover, a U.N. Declaration is, according to
one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting
importance are being enunciated." Accordingly, it has been
observed that the Universal Declaration of Human Rights "no
longer fits into the dichotomy of 'binding treaty' against 'nonbinding pronouncement,' but is rather an authoritative statement of
the international community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the expectation is

PALISOC & SARMIENTO

gradually justified by State practice, a declaration may by custom

become recognized as laying down rules binding upon the States."
Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary
international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic
remedy) of the International Convention on Civil and Political Rights
(ICCPR), to which the Philippines is both a signatory and a State
Party, the UN Human Rights Committee, under the Office of the
High Commissioner for Human Rights, has stated that the act of
enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of
the ICCPR, and the act may also amount to a crime against
humanity.[131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing
the International Criminal Court (ICC) also covers enforced
disappearances insofar as they are defined as crimes against
humanity,[132] i.e., crimes "committed as part of a widespread or
systematic attack against any civilian population, with knowledge
of the attack." While more than 100 countries have ratified the
Rome Statute,[133] the Philippines is still merely a signatory and
has not yet ratified it. We note that Article 7(1) of the Rome Statute
has been incorporated in the statutes of other international and
hybrid tribunals, including Sierra Leone Special Court, the Special
Panels for Serious Crimes in Timor-Leste, and the Extraordinary
Chambers in the Courts of Cambodia.[134] In addition, the
implementing legislation of State Parties to the Rome Statute of the
ICC has given rise to a number of national criminal provisions also
covering enforced disappearance.[135]
While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of
the Rome Statute) and has not formally declared enforced
disappearance as a specific crime, the above recital shows that
enforced disappearance as a State practice has been repudiated by
the international community, so that the ban on it is now a
generally accepted principle of international law, which we should
consider a part of the law of the land, and which we should act
upon to the extent already allowed under our laws and the
international conventions that bind us.
The following civil or political rights under the Universal Declaration
of Human Rights, the ICCPR and the International Convention on

188 | P a g e

Economic, Social and Cultural Rights (ICESR) may be infringed in

the course of a disappearance:[136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman
or degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party,
provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the
possibilities of judicial remedy;

PALISOC & SARMIENTO

(c) To ensure that the competent authorities shall enforce such

remedies when granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee
opined that the right to an effective remedy under Article 2 of the
ICCPR includes the obligation of the State to investigate ICCPR
violations promptly, thoroughly, and effectively, viz:[137]
15. Article 2, paragraph 3, requires that in addition to effective
protection of Covenant rights, States Parties must ensure that
individuals also have accessible and effective remedies to vindicate
those rights... The Committee attaches importance to States
Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under
domestic law... Administrative mechanisms are particularly required
to give effect to the general obligation to investigate allegations of
violations
promptly,
thoroughly
and
effectively
through
independent and impartial bodies. A failure by a State Party to
investigate allegations of violations could in and of itself give rise to
a separate breach of the Covenant. Cessation of an ongoing
violation is an essential element of the right to an effective remedy.
[Emphasis supplied]
The UN Human Rights Committee further stated in the same
General Comment No. 31 that failure to investigate as well as
failure to bring to justice the perpetrators of ICCPR violations could
in and of itself give rise to a separate breach of the Covenant, thus:
[138]
18. Where the investigations referred to in paragraph 15 reveal
violations of certain Covenant rights, States Parties must ensure
that those responsible are brought to justice. As with failure to
investigate, failure to bring to justice perpetrators of such violations
could in and of itself give rise to a separate breach of the Covenant.
These obligations arise notably in respect of those violations
recognized as criminal under either domestic or international law,
such as torture and similar cruel, inhuman and degrading
treatment (article 7), summary and arbitrary killing (article 6) and
enforced disappearance (articles 7 and 9 and, frequently, 6).
Indeed, the problem of impunity for these violations, a matter of
sustained concern by the Committee, may well be an important
contributing element in the recurrence of the violations. When
committed as part of a widespread or systematic attack on a
civilian population, these violations of the Covenant are crimes
against humanity (see Rome Statute of the International Criminal
Court, article 7). [Emphasis supplied]

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In Secretary of National Defense v. Manalo,[139] this Court, in

ruling that the right to security of persons is a guarantee of the
protection of one's right by the government, held that:
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. 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, 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. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR
interpreted the "right to security" not only as a prohibition on the
State against arbitrary deprivation of liberty, but also as the
imposition of a positive duty to afford protection to the right to
liberty. The Court notably quoted the following ECHR ruling:
[A]ny 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. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the
Writ of Amparo, which the Court made effective on October 24,

PALISOC & SARMIENTO

2007. Although the Amparo Rule still has gaps waiting to be filled
through substantive law, as evidenced primarily by the lack of a
concrete definition of "enforced disappearance," the materials cited
above, among others, provide ample guidance and standards on
how, through the medium of the Amparo Rule, the Court can
provide remedies and protect the constitutional rights to life, liberty
and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has
discharged the burden of proving the allegations of the petition for
the Writ of Amparo by the degree of proof required by the Amparo
Rule, we shall discuss briefly the unique evidentiary difficulties
presented by enforced disappearance cases; these difficulties form
part of the setting that the implementation of the Amparo Rule
shall encounter.
These difficulties largely arise because the State itself - the party
whose
involvement
is
alleged
investigates
enforced
disappearances. Past experiences in other jurisdictions show that
the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the
direct perpetrators.[141] Experts note that abductors are well
organized, armed and usually members of the military or police
forces, thus:
The victim is generally arrested by the security forces or by persons
acting under some form of governmental authority. In many
countries the units that plan, implement and execute the program
are generally specialized, highly-secret bodies within the armed or
security forces. They are generally directed through a separate,
clandestine chain of command, but they have the necessary
credentials to avoid or prevent any interference by the "legal"
police forces. These authorities take their victims to secret
detention centers where they subject them to interrogation and
torture without fear of judicial or other controls.[142]
In addition, there are usually no witnesses to the crime; if there are,
these witnesses are usually afraid to speak out publicly or to testify
on the disappearance out of fear for their own lives.[143] We have
had occasion to note this difficulty in Secretary of Defense v.
Manalo[144] when we acknowledged that "where powerful military
officers are implicated, the hesitation of witnesses to surface and
testify against them comes as no surprise."

190 | P a g e

Second, deliberate concealment of pertinent evidence of the

disappearance is a distinct possibility; the central piece of evidence
in an enforced disappearance - i.e., the corpus delicti or the victim's
body - is usually concealed to effectively thwart the start of any
investigation or the progress of one that may have begun.[145] The
problem for the victim's family is the State's virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human
Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced
disappearance is the deliberate use of the State's power to destroy
the pertinent evidence. The IACHR described the concealment as a
clear attempt by the State to commit the perfect crime.[147]
Third is the element of denial; in many cases, the State authorities
deliberately deny that the enforced disappearance ever occurred.
[148] "Deniability" is central to the policy of enforced
disappearances, as the absence of any proven disappearance
makes it easier to escape the application of legal standards
ensuring the victim's human rights.[149] Experience shows that
government officials typically respond to requests for information
about desaparecidos by saying that they are not aware of any
disappearance, that the missing people may have fled the country,
or that their names have merely been invented.[150]
These considerations are alive in our minds, as these are the
difficulties we confront, in one form or another, in our consideration
of this case.
Evidence and Burden of Proof in Enforced Disappearances
Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an
Amparo proceeding and the degree and burden of proof the parties
to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be
summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the
parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claims by substantial evidence.

PALISOC & SARMIENTO

The respondent who is a private individual must prove that ordinary

diligence as required by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or
evade responsibility or liability.
Section 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. [Emphasis supplied]
These characteristics - namely, of being summary and the use of
substantial evidence as the required level of proof (in contrast to
the usual preponderance of evidence or proof beyond reasonable
doubt in court proceedings) - reveal the clear intent of the framers
of the Amparo Rule to have the equivalent of an administrative
proceeding, albeit judicially conducted, in addressing Amparo
situations. The standard of diligence required - the duty of public
officials and employees to observe extraordinary diligence - point,
too, to the extraordinary measures expected in the protection of
constitutional rights and in the consequent handling and
investigation of extra-judicial killings and enforced disappearance
cases.
Thus, in these proceedings, the Amparo petitioner needs only to
properly comply with the substance and form requirements of a
Writ of Amparo petition, as discussed above, and prove the
allegations by substantial evidence. Once a rebuttable case has
been proven, the respondents must then respond and prove their
defenses based on the standard of diligence required. The
rebuttable case, of course, must show that an enforced
disappearance took place under circumstances showing a violation
of the victim's constitutional rights to life, liberty or security, and
the failure on the part of the investigating authorities to
appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations[151]
provided the Court its first opportunity to define the substantial
evidence required to arrive at a valid decision in administrative
proceedings. To directly quote Ang Tibay:

191 | P a g e

Substantial evidence is more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. [citations omitted] The statute provides
that 'the rules of evidence prevailing in courts of law and equity
shall not be controlling.' The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of
technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not
invalidate the administrative order. [citations omitted] But this
assurance of a desirable flexibility in administrative procedure does
not go so far as to justify orders without a basis in evidence having
rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,[152] which was the Court's first
petition for a Writ of Amparo, we recognized that the full and
exhaustive proceedings that the substantial evidence standard
regularly requires do not need to apply due to the summary nature
of Amparo proceedings. We said:
The remedy [of the writ of amparo] 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.
[Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of
Amparo petitions are the unique difficulties presented by the nature
of enforced disappearances, heretofore discussed, which difficulties
this Court must frontally meet if the Amparo Rule is to be given a
chance to achieve its objectives. These evidentiary difficulties
compel the Court to adopt standards appropriate and responsive to
the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR - faced
with a lack of direct evidence that the government of Honduras was
involved in Velasquez Rodriguez' disappearance - adopted a relaxed
and informal evidentiary standard, and established the rule that
presumes governmental responsibility for a disappearance if it can
be proven that the government carries out a general practice of
enforced disappearances and the specific case can be linked to that
practice.[154] The IACHR took note of the realistic fact that
enforced disappearances could be proven only through
circumstantial or indirect evidence or by logical inference;

PALISOC & SARMIENTO

otherwise, it was impossible to prove that an individual had been

made to disappear. It held:
130. The practice of international and domestic courts shows that
direct evidence, whether testimonial or documentary, is not the
only type of evidence that may be legitimately considered in
reaching a decision. Circumstantial evidence, indicia, and
presumptions may be considered, so long as they lead to
conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially
important in allegations of disappearances, because this type of
repression is characterized by an attempt to suppress all
information about the kidnapping or the whereabouts and fate of
the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velasquez
(Manfredo) was carried out by agents who acted under cover of
public authority, the IACHR relied on circumstantial evidence
including the hearsay testimony of Zenaida Velasquez, the victim's
sister, who described Manfredo's kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped
by men in civilian clothes in broad daylight. She also told the Court
that a former Honduran military official had announced that
Manfredo was kidnapped by a special military squadron acting
under orders of the Chief of the Armed Forces.[155] The IACHR
likewise considered the hearsay testimony of a second witness who
asserted that he had been told by a Honduran military officer about
the disappearance, and a third witness who testified that he had
spoken in prison to a man who identified himself as Manfredo.[156]
Velasquez stresses the lesson that flexibility is necessary under the
unique circumstances that enforced disappearance cases pose to
the courts; to have an effective remedy, the standard of evidence
must be responsive to the evidentiary difficulties faced. On the one
hand, we cannot be arbitrary in the admission and appreciation of
evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the
problem if a wrong is addressed by the commission of another
wrong. On the other hand, we cannot be very strict in our
evidentiary rules and cannot consider evidence the way we do in
the usual criminal and civil cases; precisely, the proceedings before
us are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow the
substantial evidence rule, we must observe flexibility in considering
the evidence we shall take into account.

192 | P a g e

The fair and proper rule, to our mind, is to consider all the pieces of
evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other words,
we reduce our rules to the most basic test of reason - i.e., to the
relevance of the evidence to the issue at hand and its consistency
with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration
of evidence is not at all novel in the Philippine legal system. In child
abuse cases, Section 28 of the Rule on Examination of a Child
Witness[157] is expressly recognized as an exception to the
hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual
abuse in any criminal or non-criminal proceeding, subject to certain
prerequisites and the right of cross-examination by the adverse
party. The admission of the statement is determined by the court in
light of specified subjective and objective considerations that
provide sufficient indicia of reliability of the child witness.[158]
These requisites for admission find their counterpart in the present
case under the above-described conditions for the exercise of
flexibility in the consideration of evidence, including hearsay
evidence, in extrajudicial killings and enforced disappearance
cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN
Declaration we have cited?
The Convention defines enforced disappearance as "the arrest,
detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed by
a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law."[159]
Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation of
liberty;

PALISOC & SARMIENTO

(b) carried out by agents of the State or persons or groups of

persons acting with the authorization, support or acquiescence of
the State;
(c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of
the law. [Emphasis supplied]
We find no direct evidence indicating how the victim actually
disappeared. The direct evidence at hand only shows that Tagitis
went out of the ASY Pension House after depositing his room key
with the hotel desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned - the
petitioner, Tagitis' colleagues and even the police authorities - is
that Tagistis disappeared under mysterious circumstances and was
never seen again. The respondent injected the causal element in
her petition and testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP
CIDG Zamboanga abducted or arrested Tagitis. If at all, only the
respondent's allegation that Tagistis was under CIDG Zamboanga
custody stands on record, but it is not supported by any other
evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of
information as her bases for her allegation that Tagistis had been
placed under government custody (in contrast with CIDG
Zamboanga custody). The first was an unnamed friend in
Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis
was in good hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed to establish
that Col. Ancanan gave them any information that Tagitis was in
government custody. Col. Ancanan, for his part, admitted the
meeting with the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of information was Col.
Kasim, whom the respondent, together with her witness Mrs. Talbin,
met in Camp Katitipan in Davao City. To quote the relevant portions
of the respondent's testimony:
Q: Were you able to speak to other military officials regarding the
whereabouts of your husband particularly those in charge of any
records or investigation?

193 | P a g e

Q: But you were able to read the contents?

A: I went to Camp Katitipan in Davao City. Then one military officer,
Col. Casim, told me that my husband is being abducted [sic]
because he is under custodial investigation because he is allegedly
"parang liason ng J.I.", sir.

A: No. But he read it in front of us, my friends, ma'am.

Q: How many were you when you went to see Col. Kasim?

Q: What is J.I.?

A: There were three of us, ma'am.

A: Jema'ah Islamiah, sir.

Q: Who were your companions?

Q: Was there any information that was read to you during one of
those visits of yours in that Camp?

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City,
Davao Oriental, ma'am.[162]

A: Col. Casim did not furnish me a copy of his report because he

said those reports are highly confidential, sir.

xxxx

Q: Was it read to you then even though you were not furnished a
copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis
supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao
City?
A: Yes, ma'am.
Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?
A: Yes, ma'am.
Q: And you mentioned that he showed you a report?
A: Yes, ma'am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those
[sic] were highly confidential. That is a military report, ma'am.

PALISOC & SARMIENTO

Q: When you were told that your husband is in good hands, what
was your reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with
other people na parang mga terorista na mga tao. Tapos at the end
of the report is [sic] under custodial investigation. So I told him
"Colonel, my husband is sick. He is diabetic at nagmemaintain yun
ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya
ng gamot, ma'am."[163]
xxxx
Q: You mentioned that you received information that Engineer
Tagitis is being held by the CIDG in Zamboanga, did you go to CIDG
Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal
instead. Enough na yun na effort ko because I know that they would
deny it, ma'am.[164]
On February 11, 2008, the respondent presented Mrs. Talbin to
corroborate her testimony that her husband was abducted and held
under custodial investigation by the PNP-CIDG Zamboanga City,
viz:
Q: You said that you went to Camp Katitipan in Davao City
sometime November 24, 2007, who was with you when you went
there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?

194 | P a g e

A: No. We have some other companions. We were four at that time,

sir.

Q: When he was reading it to you, was he reading it line by line or

he was reading in a summary form?

Q: Who were they?

A: Sometimes he was glancing to the report and talking to us, sir.

[165]

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

xxxx

Q: Were you able to talk, see some other officials at Camp Katitipan
during that time?

Q: Were you informed as to the place where he was being kept

during that time?

A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

A: He did not tell us where he [Tagitis] was being kept. But he

mentioned this Talipapao, Sulu, sir.

Q: Were you able to talk to him?

A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the
exact location, if he can furnish us the location of Engr. Tagitis. And
he was reading this report. He told us that Engr. Tagitis is in good
hands. He is with the military, but he is not certain whether he is
with the AFP or PNP. He has this serious case. He was charged of
terrorism because he was under surveillance from January 2007 up
to the time that he was abducted. He told us that he was under
custodial investigation. As I've said earlier, he was seen under
surveillance from January. He was seen talking to Omar Patik, a
certain Santos of Bulacan who is also a Balik Islam and charged
with terrorism. He was seen carrying boxes of medicines. Then we
asked him how long will he be in custodial investigation. He said
until we can get some information. But he also told us that he
cannot give us that report because it was a raw report. It was not
official, sir.
Q: You said that he was reading a report, was that report in
document form, in a piece of paper or was it in the computer or
what?
A: As far as I can see it, sir, it is written in white bond paper. I don't
know if it was computerized but I'm certain that it was typewritten.
I'm not sure if it used computer, fax or what, sir.

PALISOC & SARMIENTO

Q: After that incident, what did you do if any?

A: We just left and as I've mentioned, we just waited because that
raw information that he was reading to us [sic] after the custodial
investigation, Engineer Tagitis will be released. [Emphasis supplied]
[166]
Col. Kasim never denied that he met with the respondent and her
friends, and that he provided them information based on the input
of an unnamed asset. He simply claimed in his testimony that the
"informal letter" he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. He also
stressed that the information he provided the respondent was
merely a "raw report" from "barangay intelligence" that still needed
confirmation and "follow up" as to its veracity.[167]
To be sure, the respondent's and Mrs. Talbin's testimonies were far
from perfect, as the petitioners pointed out. The respondent
mistakenly characterized Col. Kasim as a "military officer" who told
her that "her husband is being abducted because he is under
custodial investigation because he is allegedly 'parang liason ng
J.I.'" The petitioners also noted that "Mrs. Talbin's testimony
imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is
with the military, but he is not certain whether it is the PNP or AFP
is not worthy of belief, since Sr. Supt. Kasim is a high ranking police
officer who would certainly know that the PNP is not part of the
military."
Upon deeper consideration of these inconsistencies, however, what
appears clear to us is that the petitioners never really steadfastly
disputed or presented evidence to refute the credibility of the
respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that

195 | P a g e

should not affect the credibility of the respondent and Mrs. Talbin;
the inconsistencies are not on material points.[168] We note, for
example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the
police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than
prevarication[169]and only tend to strengthen their probative
value, in contrast to testimonies from various witnesses dovetailing
on every detail; the latter cannot but generate suspicion that the
material circumstances they testified to were integral parts of a
well thought of and prefabricated story.[170]
Based on these considerations and the unique evidentiary situation
in enforced disappearance cases, we hold it duly established that
Col. Kasim informed the respondent and her friends, based on the
informant's letter, that Tagitis, reputedly a liaison for the JI and who
had been under surveillance since January 2007, was "in good
hands" and under custodial investigation for complicity with the JI
after he was seen talking to one Omar Patik and a certain "Santos"
of Bulacan, a "Balik Islam" charged with terrorism. The
respondent's and Mrs. Talbin's testimonies cannot simply be
defeated by Col. Kasim's plain denial and his claim that he had
destroyed his informant's letter, the critical piece of evidence that
supports or negates the parties' conflicting claims. Col. Kasim's
admitted destruction of this letter - effectively, a suppression of this
evidence - raises the presumption that the letter, if produced,
would be proof of what the respondent claimed.[171] For brevity,
we shall call the evidence of what Col. Kasim reported to the
respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide whether we can
accept this evidence, in lieu of direct evidence, as proof that the
disappearance of Tagitis was due to action with government
participation, knowledge or consent and that he was held for
custodial investigation. We note in this regard that Col. Kasim was
never quoted to have said that the custodial investigation was by
the CIDG Zamboanga. The Kasim evidence only implies
government intervention through the use of the term "custodial
investigation," and does not at all point to CIDG Zamboanga as
Tagitis' custodian.
Strictly speaking, we are faced here with a classic case of hearsay
evidence - i.e., evidence whose probative value is not based on the
personal knowledge of the witnesses (the respondent, Mrs. Talbin
and Col. Kasim himself) but on the knowledge of some other person
not on the witness stand (the informant).[172]

PALISOC & SARMIENTO

To say that this piece of evidence is incompetent and inadmissible

evidence of what it substantively states is to acknowledge - as the
petitioners effectively suggest - that in the absence of any direct
evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a statement
that the Amparo Rule - despite its terms - is ineffective, as it cannot
allow for the special evidentiary difficulties that are unavoidably
present in Amparo situations, particularly in extrajudicial killings
and enforced disappearances. The Amparo Rule was not
promulgated with this intent or with the intent to make it a token
gesture of concern for constitutional rights. It was promulgated to
provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and
enforced disappearances, as the situation may require.
Consequently, we have no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility
that these difficulties demand.
To give full meaning to our Constitution and the rights it protects,
we hold that, as in Velasquez, we should at least take a close look
at the available evidence to determine the correct import of every
piece of evidence - even of those usually considered inadmissible
under the general rules of evidence - taking into account the
surrounding circumstances and the test of reason that we can use
as basic minimum admissibility requirement. In the present case,
we should at least determine whether the Kasim evidence before us
is relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.
The evidence about Tagitis' personal circumstances surrounded him
with an air of mystery. He was reputedly a consultant of the World
Bank and a Senior Honorary Counselor for the IDB who attended a
seminar in Zamboanga and thereafter proceded to Jolo for an
overnight stay, indicated by his request to Kunnong for the
purchase of a return ticket to Zamboanga the day after he arrived
in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed
the Jolo police that Tagitis may have taken funds given to him in
trust for IDB scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust, although he
confirmed that the IDB was seeking assistance in locating funds of
IDB scholars deposited in Tagitis' personal account. Other than
these pieces of evidence, no other information exists in the records
relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was taken

196 | P a g e

away by "burly men believed to be police intelligence operatives,"

no evidence whatsoever was introduced to support this allegation.
Thus, the available direct evidence is that Tagitis was last seen at
12.30 p.m. of October 30, 2007 - the day he arrived in Jolo - and
was never seen again.
The Kasim evidence assumes critical materiality given the dearth of
direct evidence on the above aspects of the case, as it supplies the
gaps that were never looked into and clarified by police
investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into
question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the
part of the respondent, characterize the attempts to locate Tagitis.
Initially in Jolo, the police informed Kunnong that Tagitis could have
been taken by the Abu Sayyaf or other groups fighting the
government. No evidence was ever offered on whether there was
active Jolo police investigation and how and why the Jolo police
arrived at this conclusion. The respondent's own inquiry in Jolo
yielded the answer that he was not missing but was with another
woman somewhere. Again, no evidence exists that this explanation
was arrived at based on an investigation. As already related above,
the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the
inquiry from Col. Kasim that yielded positive results. Col. Kasim's
story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without
identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasim's story is that the abduction
came after Tagitis was seen talking with Omar Patik and a certain
Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs.
Talbin mentioned, too, that Tagitis was being held at Talipapao,
Sulu. None of the police agencies participating in the investigation
ever pursued these leads. Notably, Task Force Tagitis to which this
information was relayed did not appear to have lifted a finger to
pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA
made by the petitioners. Then PNP Chief Gen. Avelino I. Razon
merely reported the directives he sent to the ARMM Regional
Director and the Regional Chief of the CIDG on Tagitis, and these
reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions
with negative results. These, to the PNP Chief, constituted the
exhaustion "of all possible efforts." PNP-CIDG Chief General

PALISOC & SARMIENTO

Edgardo M. Doromal, for his part, also reported negative results

after searching "all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and
thorough research, records show that no such person is being
detained in the CIDG or any of its department or divisions." PNPPACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM
Regional Director PC Superintendent Joel R. Goltiao did no better in
their affidavits-returns, as they essentially reported the results of
their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested
when the CA constituted Task Force Tagitis, with specific directives
on what to do. The negative results reflected in the Returns on the
writ were again replicated during the three hearings the CA
scheduled. Aside from the previously mentioned "retraction" that
Prof. Matli made to correct his accusation that Tagitis took money
held in trust for students, PS Supt. Ajirim reiterated in his testimony
that the CIDG consistently denied any knowledge or complicity in
any abduction and said that there was no basis to conclude that the
CIDG or any police unit had anything to do with the disappearance
of Tagitis; he likewise considered it premature to conclude that
Tagitis simply ran away with the money in his custody. As already
noted above, the Task Force notably did not pursue any
investigation about the personal circumstances of Tagitis, his
background in relation to the IDB and the background and activities
of this Bank itself, and the reported sighting of Tagistis with
terrorists and his alleged custody in Talipapao, Sulu. No attempt
appears to have ever been made to look into the alleged IDB funds
that Tagitis held in trust, or to tap any of the "assets" who are
indispensable in investigations of this nature. These omissions and
negative results were aggravated by the CA findings that it was
only as late as January 28, 2008 or three months after the
disappearance that the police authorities requested for clear
pictures of Tagitis. Col. Kasim could not attend the trial because his
subpoena was not served, despite the fact that he was designated
as Ajirim's replacement in the latter's last post. Thus, Col. Kasim
was not then questioned. No investigation - even an internal one appeared to have been made to inquire into the identity of Col.
Kasim's "asset" and what he indeed wrote.
We glean from all these pieces of evidence and developments a
consistency in the government's denial of any complicity in the
disappearance of Tagitis, disrupted only by the report made by Col.
Kasim to the respondent at Camp Katitipan. Even Col. Kasim,
however, eventually denied that he ever made the disclosure that
Tagitis was under custodial investigation for complicity in terrorism.
Another distinctive trait that runs through these developments is

197 | P a g e

the government's dismissive approach to the disappearance,

starting from the initial response by the Jolo police to Kunnong's
initial reports of the disappearance, to the responses made to the
respondent when she herself reported and inquired about her
husband's disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at
best haphazard since the authorities were looking for a man whose
picture they initially did not even secure. The returns and reports
made to the CA fared no better, as the CIDG efforts themselves
were confined to searching for custodial records of Tagitis in their
various departments and divisions. To point out the obvious, if the
abduction of Tagitis was a "black" operation because it was
unrecorded or officially unauthorized, no record of custody would
ever appear in the CIDG records; Tagitis, too, would not be detained
in the usual police or CIDG detention places. In sum, none of the
reports on record contains any meaningful results or details on the
depth and extent of the investigation made. To be sure, reports of
top police officials indicating the personnel and units they directed
to investigate can never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of the
activities undertaken to search for Tagitis. Indisputably, the police
authorities from the very beginning failed to come up to the
extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim's
disclosure, made in an unguarded moment, unequivocally point to
some government complicity in the disappearance. The consistent
but unfounded denials and the haphazard investigations cannot but
point to this conclusion. For why would the government and its
officials engage in their chorus of concealment if the intent had not
been to deny what they already knew of the disappearance? Would
not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the government's cap
under the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the
Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the
UN Declaration, heretofore cited and quoted,[173] the evidence at
hand and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and
haphazard handling. The disappearance as well effectively placed
Tagitis outside the protection of the law - a situation that will
subsist unless this Court acts.

PALISOC & SARMIENTO

This kind of fact situation and the conclusion reached are not
without precedent in international enforced disappearance rulings.
While the facts are not exactly the same, the facts of this case run
very close to those of Timurtas v. Turkey,[174] a case decided by
ECHR. The European tribunal in that case acted on the basis of the
photocopy of a "post-operation report" in finding that Abdulvahap
Timurtas (Abdulvahap) was abducted and later detained by agents
(gendarmes) of the government of Turkey. The victim's father in this
case brought a claim against Turkey for numerous violations of the
European Convention, including the right to life (Article 2) and the
rights to liberty and security of a person (Article 5). The applicant
contended that on August 14, 1993, gendarmes apprehended his
son, Abdulvahap for being a leader of the Kurdish Workers' Party
(PKK) in the Silopi region. The petition was filed in southeast Turkey
nearly six and one half years after the apprehension. According to
the father, gendarmes first detained Abdulvahap and then
transferred him to another detainment facility. Although there was
no eyewitness evidence of the apprehension or subsequent
detainment, the applicant presented evidence corroborating his
version of events, including a photocopy of a post-operation report
signed by the commander of gendarme operations in Silopi, Turkey.
The report included a description of Abdulvahap's arrest and the
result of a subsequent interrogation during detention where he was
accused of being a leader of the PKK in the Silopi region. On this
basis, Turkey was held responsible for Abdulvahap's enforced
disappearance.
Following the lead of this Turkish experience - adjusted to the
Philippine legal setting and the Amparo remedy this Court has
established, as applied to the unique facts and developments of
this case - we believe and so hold that the government in general,
through the PNP and the PNP-CIDG, and in particular, the Chiefs of
these organizations together with Col. Kasim, should be held fully
accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic
Act No. 6975, otherwise known as the "PNP Law,"[175] specifies the
PNP as the governmental office with the mandate "to investigate
and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution." The PNP-CIDG,
as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is
the "investigative arm" of the PNP and is mandated to "investigate
and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes."[176] Under
the PNP organizational structure, the PNP-CIDG is tasked to
investigate all major crimes involving violations of the Revised

198 | P a g e

Penal Code and operates against organized crime groups, unless

the President assigns the case exclusively to the National Bureau of
Investigation (NBI).[177] No indication exists in this case showing
that the President ever directly intervened by assigning the
investigation of Tagitis' disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members
were the ones who were remiss in their duties when the
government completely failed to exercise the extral'>To fully
enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and
the PNP-CIDG investigations and actions, and the validation of their
results through hearings the CA may deem appropriate to conduct.
For purposes of these investigations, the PNP/PNP-CIDG shall
initially present to the CA a plan of action for further investigation,
periodically reporting the detailed results of its investigation to the
CA for its consideration and action. On behalf of this Court, the CA
shall pass upon: the need for the PNP and the PNP-CIDG to make
disclosures of matters known to them as indicated in this Decision
and as further CA hearings may indicate; the petitioners'
submissions; the sufficiency of their investigative efforts; and
submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the
respondent, with the first report due at the end of the first quarter
counted from the finality of this Decision. The PNP and the PNPCIDG shall have one (1) full year to undertake their investigation.
The CA shall submit its full report for the consideration of this Court
at the end of the 4th quarter counted from the finality of this
Decision.
WHEREFORE, premises considered, we DENY the petitioners'
petition for review on certiorari for lack of merit, and AFFIRM the
decision of the Court of Appeals dated March 7, 2008 under the
following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis
is an enforced disappearance covered by the Rule on the Writ of
Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the
PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the
enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;

PALISOC & SARMIENTO

d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material
facts known to the government and to their offices regarding the
disappearance of Engineer Morced N. Tagitis, and for the conduct of
proper investigations using extraordinary diligence, with the
obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case
and holding him accountable with the obligation to disclose
information known to him and to his "assets" in relation with the
enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP
and the PNP-CIDG shall initially present to the Court of Appeals a
plan of action for further investigation, periodically reporting their
results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly
report with its recommendations, copy furnished the incumbent
PNP and PNP-CIDG Chiefs as petitioners and the respondent, with
the first report due at the end of the first quarter counted from the
finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigations; the Court of Appeals shall submit its
full report for the consideration of this Court at the end of the 4th
quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals' made pursuant
to this Decision shall be given to, and shall be directly enforceable
against, whoever may be the incumbent Chiefs of the Philippine
National Police and its Criminal Investigation and Detection Group,
under pain of contempt from this Court when the initiatives and
efforts at disclosure and investigation constitute less than the
extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature of
Amparo cases and their varying attendant circumstances, these
directives - particularly, the referral back to and monitoring by the
CA - are specific to this case and are not standard remedies that
can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General
Alexander Yano, Commanding General, Philippine Army, and
General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet,
Zamboanga City, is hereby AFFIRMED.

199 | P a g e

SO ORDERED.

PALISOC & SARMIENTO

200 | P a g e

THE PROVINCE OF NORTH COTABATO, duly represented by

GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PI?OL, for and in his own behalf, Petitioners,
versus THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN
SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the
latter in his capacity as the present and duly-appointed
Presidential Adviser on the Peace Process (OPAPEOPLE) or
the so-called Office of the Presidential Adviser on the Peace
Process, Respondents.
G.R. No. 183591 and G.R. No. 183752 and G.R. No. 183893 and G.R.
No. 183962 | 2008-10-14
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process. While the
facts surrounding this controversy center on the armed conflict
in Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing on all
areas in the country where there has been a long-standing armed
conflict. Yet again, the Court is tasked to perform a delicate
balancing act. It must uncompromisingly delineate the bounds
within which the President may lawfully exercise her discretion, but
it must do so in strict adherence to the Constitution, lest its ruling
unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to
pursue the peace process effectively.
I.

FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the

Philippines (GRP) and the MILF, through the Chairpersons of their
respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia.
The MILF is a rebel group which was established in March
1984 when, under the leadership of the late Salamat Hashim, it
splintered from the Moro National Liberation Front (MNLF) then
headed by Nur Misuari, on the ground, among others, of what

PALISOC & SARMIENTO

Salamat perceived to be the manipulation of the MNLF away from

an Islamic basis towards Marxist-Maoist orientations. [1]
The signing of the MOA-AD between the GRP and the MILF
was not to materialize, however, for upon motion of petitioners,
specifically those who filed their cases before the scheduled signing
of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation
and the concluding of several prior agreements between the two
parties beginning in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF Peace Panels signed
the Agreement on General Cessation of Hostilities. The following
year, they signed the General Framework of Agreement of Intent
on August 27, 1998.
The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with
sincerity in the resolution and pacific settlement of the conflict, and
refrain from the use of threat or force to attain undue advantage
while the peace negotiations on the substantive agenda are ongoing.[2]
Early on, however, it was evident that there was not going to
be any smooth sailing in the GRP-MILF peace process. Towards the
end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte.[3] In
response, then President Joseph Estrada declared and carried out
an all-out-war against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The MILF,
according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of
Malaysia through Prime Minister Mahathir Mohammad to help
convince the MILF to return to the negotiating table, the MILF
convened its Central Committee to seriously discuss the matter
and, eventually, decided to meet with the GRP.[4]
The parties met in Kuala Lumpur on March 24, 2001, with the
talks being facilitated by the Malaysian government, the parties
signing on the same date the Agreement on the General

201 | P a g e

Framework for the Resumption of Peace Talks Between the GRP and
the MILF. The MILF thereafter suspended all its military actions.[5]
Formal peace talks between the parties were held in Tripoli,
Libya from June 20-22, 2001, the outcome of which was theGRPMILF Tripoli Agreement on Peace (Tripoli Agreement 2001)
containing the basic principles and agenda on the following aspects
of
the
negotiation: Security Aspect, Rehabilitation Aspect,
and Ancestral Domain Aspect. With regard to the Ancestral
Domain Aspect, the parties in Tripoli Agreement 2001 simply
agreed that the same be discussed further by the Parties in their
next meeting.
A
second
round
of
peace
talks
was
held
in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the
signing of theImplementing Guidelines on the Security Aspect of
the Tripoli Agreement 2001 leading to a ceasefire status between
the parties. This was followed by the Implementing Guidelines on
the Humanitarian Rehabilitation and Development Aspects of the
Tripoli Agreement 2001, which was signed on May 7,
2002 at Putrajaya, Malaysia. Nonetheless,
there
were
many
incidence of violence between government forces and the MILF
from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed
away on July 13, 2003 and he was replaced by Al Haj Murad, who
was then the chief peace negotiator of the MILF. Murads position
as chief peace negotiator was taken over by Mohagher Iqbal. [6]
In 2005, several exploratory talks were held between the
parties in Kuala Lumpur, eventually leading to the crafting of the
draft MOA-AD in its final form, which, as mentioned, was set to be
signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious
consensus ever embodied in an instrument the MOA-AD which
is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace
Panel on Ancestral Domain[7] and the Presidential Adviser on the
Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and ViceGovernor Emmanuel Piol filed a petition, docketed as G.R. No.
183591, for Mandamus and Prohibition with Prayer for the Issuance
of Writ of Preliminary Injunction and Temporary Restraining Order.
[9]
Invoking the right to information on matters of public concern,
petitioners seek to compel respondents to disclose and furnish
them the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the
holding of a public consultation thereon. Supplementarily,
petitioners pray that the MOA-AD be declared unconstitutional. [10]
This initial petition was followed by another one, docketed
as G.R. No. 183752, also for Mandamus and Prohibition [11] filed by
the City of Zamboanga,[12] Mayor Celso Lobregat, Rep. Ma. Isabelle
Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City
of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOAAD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary
Restraining Order commanding and directing public respondents
and their agents to cease and desist from formally signing the MOAAD.[13] The Court also required the Solicitor General to submit to
the Court and petitioners the official copy of the final draft of the
MOA-AD,[14] to which she complied.[15]
Meanwhile, the City of Iligan [16] filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same
had already been signed, from implementing the same, and that
the
MOA-AD
be
declared
unconstitutional. Petitioners
herein additionally implead Executive Secretary Eduardo Ermita as
respondent.
The Province of Zamboanga del Norte,[17] Governor Rolando Yebes,
Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep.
Cesar
Jalosjos,
and
the
members[18] of
the Sangguniang
Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition, [19] docketed
as G.R. No. 183951. They pray, inter alia, that the MOA-AD be
declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
Pimentel III filed a petition for Prohibition, [20] docketed as G.R. No.

PALISOC & SARMIENTO

202 | P a g e

183962, praying for a judgment prohibiting and permanently

enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar
thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the
MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court
to file their petitions-/comments-in-intervention. Petitioners-inIntervention include Senator Manuel A. Roxas, former Senate
President Franklin Drilon and Atty. Adel Tamano, the City
of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality
of Linamon in Lanao del Norte, [23] Ruy Elias Lopez of Davao City and
of the Bagobo tribe, Sangguniang Panlungsod member Marino
Ridao and businessman Kisin Buxani, both of Cotabato City; and
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement
for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of
the petitions. Respondents filed Comments on the petitions, while
some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008,
stated that the Executive Department shall thoroughly review the
MOA-AD and pursue further negotiations to address the issues
hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents motion was met
with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29,
2008 that tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government
Units is concerned, if it is considered that consultation has
become fait accompli with the finalization of the draft;

PALISOC & SARMIENTO

2. Whether the constitutionality and the legality of the MOA is ripe

for adjudication;
3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the peoples right to information
on matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic
of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as
a separate state, or a juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and existing laws to
conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic Act No.
8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION
OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the
authority to so bind the Government of the Republic of
the Philippines;
6. Whether the inclusion/exclusion of the Province of North
Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered
by the projected Bangsamoro Homeland is a justiciable question;
and
7. Whether desistance from signing the MOA derogates any prior
valid commitments of the Government of the Republic of
the Philippines.[24]

203 | P a g e

The Court, thereafter, ordered the parties to submit their respective

Memoranda. Most of the parties submitted their memoranda on
time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections
raised in the subject five petitions and six petitions-in-intervention
against the MOA-AD, as well as the two comments-in-intervention
in favor of the MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and
the MILF.
Under the heading Terms of Reference (TOR), the MOA-AD
includes not only four earlier agreements between the GRP and
MILF, but also two agreements between the GRP and the MNLF: the
1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on
September 2, 1996 during the administration of President Fidel
Ramos.
The MOA-AD also identifies as TOR two local statutes the
organic act for the Autonomous Region in Muslim Mindanao (ARMM)
[25]
and the Indigenous Peoples Rights Act (IPRA), [26] and several
international law instruments the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries
in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of
compact rights entrenchment emanating from the regime ofdar-ulmuahada (or
territory under compact)
and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a
treaty device.
During the height of the Muslim Empire, early Muslim jurists
tended to see the world through a simple dichotomy: there was
the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode
of War). The first referred to those lands where Islamic laws held
sway, while the second denoted those lands where Muslims were
persecuted or where Muslim laws were outlawed or ineffective.
[27]
This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the
international community of nations.

PALISOC & SARMIENTO

As Muslim States entered into treaties with their neighbors,

even with distant States and inter-governmental organizations, the
classical division of the world into dar-ul-Islam and dar-ulharb eventually lost its meaning. New terms were drawn up to
describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-muahada (land of compact) and dar-ulsulh (land of treaty) referred to countries which, though under a
secular regime, maintained peaceful and cooperative relations with
Muslim States, having been bound to each other by treaty or
agreement. Dar-ul-aman (land of order), on the other hand,
referred to countries which, though not bound by treaty with
Muslim States, maintained freedom of religion for Muslims.[28]
It thus appears that the compact rights entrenchment
emanating from the regime of dar-ul-muahada and dar-ulsulhsimply refers to all other agreements between the MILF and the
Philippine government the Philippines being the land of compact
and peace agreement that partake of the nature of a treaty
device, treaty being broadly defined as any solemn agreement
in writing that sets out understandings, obligations, and benefits for
both parties which provides for a framework that elaborates the
principles declared in the [MOA-AD].[29]
The MOA-AD states that the Parties HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS, and starts with its main body.
The main body of the MOA-AD is divided into four strands,
namely, Concepts and Principles, Territory, Resources, and
Governance.
A.

CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is the

birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as Bangsamoros. It defines
Bangsamoro
people
as
the natives
or
original
inhabitants of Mindanao and
its
adjacent
islands
including Palawan and the Sulu archipelago at the time of conquest
or colonization, and their descendants whether mixed or of full
blood, including their spouses.[30]
Thus, the concept of Bangsamoro, as defined in this strand
of the MOA-AD, includes not only Moros as traditionally
understood
even
by
Muslims,[31] but
all indigenous peoples of Mindanao and its adjacent islands. The
MOA-AD adds that the freedom of choice of indigenous peoples

204 | P a g e

shall be respected. What this freedom of choice consists in has not

been specifically defined.
The MOA-AD proceeds to refer to the Bangsamoro
homeland, the ownership of which is vested exclusively in the
Bangsamoro people by virtue of their prior rights of occupation.
[32]
Both parties to the MOA-AD acknowledge that ancestral domain
does not form part of the public domain.[33]
The Bangsamoro people are acknowledged as having
the right to self-governance, which right is said to be rooted on
ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku
Ranaw. The
sultanates
were
described
as
states
or
karajaan/kadatuan resembling a body politic endowed with all the
elements of a nation-state in the modern sense.[34]
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the
sultanates. As gathered, the territory defined as the Bangsamoro
homeland was ruled by several sultanates and, specifically in the
case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each
ruled by datus and sultans, none of whom was supreme over the
others.[35]
The MOA-AD goes on to describe the Bangsamoro people as
the First Nation with defined territory and with a system of
government having entered into treaties of amity and commerce
with foreign nations.
The term First Nation is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally
entitled to be called First Nation, hence, all of them are usually
described collectively by the plural First Nations.[36] To that
extent, the MOA-AD, by identifying the Bangsamoro people as
theFirst Nation suggesting its exclusive entitlement to that
designation departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the
Bangsamoro Juridical Entity (BJE) to which it grants the
authority
and
jurisdiction
over
the
Ancestral
Domain
and Ancestral Lands of the Bangsamoro.[37]

PALISOC & SARMIENTO

B.

TERRITORY

The territory of the Bangsamoro homeland is described as

the land mass as well as the maritime, terrestrial, fluvial and
alluvial domains, including the aerial domain and the atmospheric
space above it, embracing the Mindanao-Sulu-Palawan geographic
region.[38]
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM thus constituting the following
areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the
ARMM in the 2001 plebiscite.[39]
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is to
be subjected to a plebiscite to be held on different dates, years
apart from each other. Thus, Category A areas are to be subjected
to a plebiscite not later than twelve (12) months following the
signing of the MOA-AD.[40] Category B areas, also called Special
Intervention Areas, on the other hand, are to be subjected to a
plebiscite twenty-five (25) years from the signing of a separate
agreement the Comprehensive Compact.[41]
The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its internal waters,
defined as extending fifteen (15) kilometers from the coastline of
the BJE area;[42] that the BJE shall also have territorial waters,
which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and
south
west
of
mainland
Mindanao;
and
that within
these territorial waters,
the
BJE
and
the
Central
Government (used
interchangeably
with
RP)
shall
exercise joint jurisdiction, authority and management over all
natural
resources.[43] Notably,
the
jurisdiction
over
theinternal waters is not similarly described as joint.
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and the BJE,
in favor of the latter, through production sharing and economic
cooperation agreement.[44] The activities which the Parties are
allowed to conduct on the territorial waters are enumerated,
among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the
enforcement of police and safety measures. [45] There is no similar

205 | P a g e

provision on the sharing of minerals and allowed activities with

respect to the internal waters of the BJE.
C.

RESOURCES

The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign countries
and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are
not to include aggression against the GRP. The BJE may also enter
into environmental cooperation agreements.[46]
The external defense of the BJE is to remain the duty and
obligation of the Central Government. The Central Government is
also bound to take necessary steps to ensure the BJEs
participation in international meetings and events like those of the
ASEAN and the specialized agencies of the UN. The BJE is to be
entitled to participate in Philippine official missions and delegations
for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and
revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain. [47]
With regard to the right of exploring for, producing, and
obtaining all potential sources of energy, petroleum, fossil fuel,
mineral oil and natural gas, the jurisdiction and control thereon is to
be vested in the BJE as the party having control within its
territorial jurisdiction. This right carries the proviso that, in times
of national emergency, when public interest so requires, the
Central Government may, for a fixed period and under reasonable
terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.[48]
The sharing between the Central Government and the BJE of
total production pertaining to natural resources is to be 75:25 in
favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the
Bangsamoro people arising from any unjust dispossession of their
territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually
determined by the Parties.[50]
The BJE may modify or cancel the forest concessions,
timber licenses, contracts or agreements, mining concessions,
Mineral Production and Sharing Agreements (MPSA), Industrial

PALISOC & SARMIENTO

Forest Management Agreements (IFMA), and other land tenure

instrumentsgranted by the Philippine Government, including those
issued by the present ARMM.[51]
D.

GOVERNANCE

The MOA-AD binds the Parties to invite a multinational thirdparty to observe and monitor the implementation of
theComprehensive Compact. This compact is to embody the
details for the effective enforcement and the mechanisms and
modalities for the actual implementation of the MOA-AD. The
MOA-AD explicitly provides that the participation of the third party
shall not in any way affect the status of the relationship between
the Central Government and the BJE.[52]
The associative relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government
and the BJE as associative, characterized by shared authority
and responsibility. And it states that the structure of governance is
to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the
Comprehensive Compact.
The
MOA-AD
provides
that
its provisions
requiring
amendments to the existing legal framework shall take effect
upon signing of the Comprehensive Compact and upon effecting
the aforesaid amendments, with due regard to the nonderogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. As
will be discussed later, much of the present controversy
hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and internal
security force, judicial system and correctional institutions,the
details of which shall be discussed in the negotiation of the
comprehensive compact.
As stated early on, the MOA-AD was set to be signed
on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
Chairpersons of the Peace Negotiating Panels of the GRP and the
MILF, respectively. Notably, the penultimate paragraph of the MOAAD identifies the signatories as the representatives of the Parties,

206 | P a g e

meaning the GRP and MILF themselves, and not merely of the
negotiating panels.[53] In addition, the signature page of the MOAAD states that it is WITNESSED BY Datuk Othman Bin Abd Razak,
Special Adviser to the Prime Minister of Malaysia, ENDORSED BY
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED IN THE PRESENCE
OF Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and
Dato Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last
August 5, 2008.

existence of an immediate or threatened injury to itself as a result

of the challenged action.[61] He must show that he has sustained or
is immediately in danger of sustaining some direct injury as a result
of the act complained of.[62]
The Solicitor General argues that there is no justiciable controversy
that is ripe for judicial review in the present petitions, reasoning
that

Annexed to the MOA-AD are two documents containing the

respective lists cum maps of the provinces, municipalities, and
barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

The unsigned MOA-AD is simply a list of consensus points subject to

further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that
does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly
complied with. x x x

IV.

PROCEDURAL ISSUES

xxxx

A.

RIPENESS

The power of judicial review is limited to actual cases or

controversies.[54] Courts decline to issue advisory opinions or to
resolve hypothetical or feigned problems, or mere academic
questions.[55] The limitation of the power of judicial review to actual
cases and controversies defines the role assigned to the judiciary in
a tripartite allocation of power, to assure that the courts will not
intrude into areas committed to the other branches of government.

In the cases at bar, it is respectfully submitted that this Honorable

Court has no authority to pass upon issues based on hypothetical
or feigned constitutional problems or interests with no concrete
bases. Considering the preliminary character of the MOA-AD, there
are no concrete acts that could possibly violate petitioners and
intervenors rights since the acts complained of are mere
contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors perceived injury, if
at all, is merely imaginary and illusory apart from being unfounded
and based on mere conjectures. (Underscoring supplied)

[56]

An actual case or controversy involves a conflict of legal rights, an

assertion of opposite legal claims, susceptible of judicial resolution
as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and
jurisprudence.[57] The Court can decide the constitutionality of an
act or treaty only when a proper case between opposing parties is
submitted for judicial determination.[58]
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the
individual challenging it.[59] For a case to be considered ripe for
adjudication, it is a prerequisite that something had then been
accomplished or performed by either branch before a court may
come into the picture,[60] and the petitioner must allege the

PALISOC & SARMIENTO

The Solicitor General cites[63] the following provisions of the MOAAD:

TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements,
the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months following the
signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A
attached herein (the Annex). The Annex constitutes an integral

207 | P a g e

part of this framework agreement. Toward this end, the Parties

shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen
(15) months from the signing of the MOA-AD.

the schools policy allowing student-led prayers and speeches

before games was ripe for adjudication, even if no public prayer
had yet been led under the policy, because the policy was being
challenged as unconstitutional on its face.[68]

xxxx

That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States, [69]decided in
1992, the United States Supreme Court held that the action by the
State of New York challenging the provisions of the Low-Level
Radioactive Waste Policy Act was ripe for adjudication even if the
questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate
action to avoid the provision's consequences.[70]

GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non-derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. [64] (Underscoring
supplied)
The Solicitor Generals arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the
present controversy ripe. In Pimentel, Jr. v. Aguirre,[65]this Court
held:
x x x [B]y the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously alleged
to have infringed the Constitution and the laws x x x settling the
dispute becomes the duty and the responsibility of the courts. [66]
In Santa Fe Independent School District v. Doe, [67] the United States
Supreme Court held that the challenge to the constitutionality of

PALISOC & SARMIENTO

The present petitions pray for Certiorari,[71] Prohibition, and

Mandamus. Certiorari and Prohibition are remedies granted by law
when any tribunal, board or officer has acted, in the case of
certiorari, or is proceeding, in the case of prohibition, without or in
excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. [72] Mandamus is a
remedy granted by law when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use or
enjoyment of a right or office to which such other is entitled.
[73]
Certiorari, Mandamus and Prohibition are appropriate remedies
to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials. [74]
The authority of the GRP Negotiating Panel is defined by Executive
Order No. 3 (E.O. No. 3), issued on February 28, 2001.[75] The said
executive order requires that [t]he government's policy framework
for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace
process x x x be governed by this Executive Order.[76]
The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the
local government units or communities affected, nor informing
them of the proceedings. As will be discussed in greater detail
later, such omission, by itself, constitutes a departure by
respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOAAD violate the Constitution. The MOA-AD provides that any
provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon the signing of a

208 | P a g e

Comprehensive Compact and upon effecting the necessary

changes to the legal framework, implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in
effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its
authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of
respondent that exceed their authority, by violating their duties
under E.O. No. 3 and the provisions of the Constitution and
statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe
for adjudication exists. When an act of a branch of government
is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the
judiciary to settle the dispute.[77]
B. LOCUS STANDI
For a party to have locus standi, one must allege such a
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional questions.[78]
Because constitutional cases are often public actions in
which the relief sought is likely to affect other persons, a
preliminary question frequently arises as to this interest in the
constitutional question raised.[79]
When suing as a citizen, the person complaining must allege
that he has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act
complained of.[80] When the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.[81]
For a taxpayer, one is allowed to sue where there is an
assertion that public funds are illegally disbursed or deflected to an
illegal purpose, or that there is a wastage of public funds through
the enforcement of an invalid or unconstitutional law. [82] The Court
retains discretion whether or not to allow a taxpayers suit.[83]
In the case of a legislator or member of Congress, an act of
the Executive that injures the institution of Congress causes a
derivative but nonetheless substantial injury that can be

PALISOC & SARMIENTO

questioned by legislators. A member of the House of

Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in
his office.[84]
An organization may be granted standing to assert the rights
of its members,[85] but the mere invocation by the Integrated Bar of
the Philippines or any member of the legal profession of the duty to
preserve the rule of law does not suffice to clothe it with standing.
[86]

As regards a local government unit (LGU), it can seek relief in

order to protect or vindicate an interest of its own, and of the other
LGUs.[87]
Intervenors, meanwhile, may be given legal standing upon
showing of facts that satisfy the requirements of the law
authorizing intervention,[88] such as a legal interest in the matter in
litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural
technicality on locus standi, given the liberal attitude it has
exercised, highlighted in the case of David v. Macapagal-Arroyo,
[89]
where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in
view of their seriousness, novelty and weight as precedents. [90] The
Courts forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under
the Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure. [91]
In the petitions at bar, petitioners Province of North
Cotabato (G.R. No. 183591) Province of Zamboanga del
Norte(G.R. No. 183951), City of Iligan (G.R. No. 183893) and City
of
Zamboanga (G.R.
No.
183752)
and
petitioners-ininterventionProvince
of
Sultan
Kudarat,
City
of
Isabela and Municipality of Linamon have locus standi in view
of the direct and substantial injury that they, as LGUs, would suffer
as their territories, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they
did not vote for their inclusion in the ARMM which would be

209 | P a g e

expanded to form the BJE territory. Petitioners legal standing is

thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as
citizens and taxpayers for their failure to specify that they would be
denied some right or privilege or there would be wastage of public
funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro,
respectively, is of no consequence. Considering their invocation of
the transcendental importance of the issues at hand, however, the
Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging
their standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional
plebiscite to delineate the BJE territory. On that score alone, they
can be given legal standing. Their allegation that the issues
involved in these petitions are of undeniable transcendental
importance clothes them with added basis for their personality to
intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is
premised on his being a member of the Senate and a citizen to
enforce compliance by respondents of the publics constitutional
right to be informed of the MOA-AD, as well as on a genuine legal
interest in the matter in litigation, or in the success or failure of
either of the parties. He thus possesses the requisite standing as
an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former
congressman of the 3rd district of Davao City, a taxpayer and a
member of the Bagobo tribe; Carlo B. Gomez, et al., as members
of the IBP Palawan chapter, citizens and taxpayers; Marino
Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they
failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax
the procedural technicality on locus standi given the paramount
public interest in the issues at hand.
Intervening
respondents Muslim
Multi-Sectoral
Movement for Peace and Development, an advocacy group for
justice and the attainment of peace and prosperity in Muslim
Mindanao; and Muslim Legal Assistance Foundation Inc., a
non-government organization of Muslim lawyers, allege that they
stand to be benefited or prejudiced, as the case may be, in the

PALISOC & SARMIENTO

resolution of the petitions concerning the MOA-AD, and prays for

the denial of the petitions on the grounds therein stated. Such
legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been
rendered moot with the satisfaction of all the reliefs prayed for by
petitioners and the subsequent pronouncement of the Executive
Secretary that [n]o matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA.[92]
In lending credence to this policy decision, the Solicitor
General points out that the President had already disbanded
the GRPPeace Panel.[93]
In David v. Macapagal-Arroyo,[94] this Court held that the
moot and academic principle not being a magical formula that
automatically dissuades courts in resolving a case, it will decide
cases, otherwise moot and academic, if it finds that (a) there is a
grave violation of the Constitution; [95] (b) the situation is of
exceptional character and paramount public interest is involved;
[96]
(c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;
[97]
and (d) the case is capable of repetition yet evading review. [98]
Another exclusionary circumstance that may be considered is
where there is a voluntary cessation of the activity complained of
by the defendant or doer. Thus, once a suit is filed and the doer
voluntarily ceases the challenged conduct, it does not
automatically deprive the tribunal of power to hear and determine
the case and does not render the case moot especially when the
plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.[99]
The present petitions fall squarely into these exceptions to
thus thrust them into the domain of judicial review. The grounds
cited above in David are just as applicable in the present cases as
they were, not only in David, but also in Province of Batangas v.
Romulo[100] and Manalo v. Calderon[101] where the Court similarly
decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.
Petitions not mooted

210 | P a g e

Contrary then to the asseverations of respondents, the nonsigning of the MOA-AD and the eventual dissolution of the GRP
Peace Panel did not moot the present petitions. It bears emphasis
that the signing of the MOA-AD did not push through due to the
Courts issuance of a Temporary Restraining Order.
Contrary too to respondents position, the MOA-AD cannot be
considered a mere list of consensus points, especially given
its nomenclature, the need to have it signed or initialed by all
the parties concerned on August 5, 2008, and the far-reaching
Constitutional
implications of
these
consensus
points, foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is
a commitment on the part of respondents to amend and
effect necessary changes to the existing legal framework
for
certain
provisions
of
the
MOA-AD
to
take
effect. Consequently, the present petitions are not confined to the
terms and provisions of the MOA-AD, but to other ongoing and future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot
and academic simply by the public disclosure of the MOA-AD,
[102]
the manifestation that it will not be signed as well as the
disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of the
countrys territory and the wide-ranging political modifications of
affected LGUs. The assertion that the MOA-AD is subject to
further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court
toformulate controlling principles to guide the bench, the
bar, the public and, in this case, the government and its
negotiating entity.
Respondents cite Suplico v. NEDA, et al.[103] where the Court
did not pontificat[e] on issues which no longer legitimately
constitute an actual case or controversy [as this] will do more harm
than good to the nation as a whole.
The
present
petitions
must
be
differentiated
from Suplico. Primarily, in Suplico, what was assailed and
eventually cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-time

PALISOC & SARMIENTO

contractual relationbetween two partiesthe government and a

private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on
contracts, the majority opinion in Suplico found nothing exceptional
therein, the factual circumstances being peculiar only to the
transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part
of
a
series
of
agreements necessary to carry out
the TripoliAgreement 2001. The MOA-AD which dwells on
the Ancestral Domain Aspect of said Tripoli Agreement is the third
such component to be undertaken following the implementation of
the Security Aspect in
August
2001
and
the Humanitarian,
Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his
Memorandum of August 28, 2008 to the Solicitor General, has
stated that no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD], mootness
will not set in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will
be drawn up to carry out the Ancestral Domain Aspect of
the Tripoli Agreement 2001, in another or in any form, which
could contain similar or significantly drastic provisions. While the
Court notes the word of the Executive Secretary that the
government is committed to securing an agreement that is both
constitutional and equitable because that is the only way that longlasting peace can be assured, it is minded to render a decision on
the merits in the present petitions to formulate controlling
principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF
regarding Ancestral Domain.
Respondents invite the Courts attention to the separate
opinion of then Chief Justice Artemio Panganiban in Sanlakas v.
Reyes[104] in which he stated that the doctrine of capable of
repetition yet evading review can override mootness, provided
the party raising it in a proper case has been and/or continue to be
prejudiced or damaged as a direct result of their issuance. They
contend that the Court must have jurisdiction over the subject
matter for the doctrine to be invoked.

211 | P a g e

The present petitions all contain prayers for Prohibition over which
this Court exercises original jurisdiction. While G.R. No. 183893
(City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far
reaching implications and raises questions that need to be
resolved.[105] At all events, the Court has jurisdiction over most if
not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the
Court to again apply the doctrine immediately referred to as what it
had done in a number of landmark cases.[106] There is
a reasonable expectation that petitioners, particularly the Provinces
of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, will again be subjected to the same problem in the future
as respondents actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the
petitions have become moot, respondents having, by Compliance
ofAugust 7, 2008, provided this Court and petitioners with official
copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention,
there are basically two SUBSTANTIVE issues to be resolved, one
relating to the manner in which the MOA-AD was negotiated and
finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory
provisions on public consultation and the right to information when
they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution
and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on
matters of public concern, as provided in Section 7, Article III on
the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to

PALISOC & SARMIENTO

documents, and papers pertaining to official acts, transactions, or

decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.[107]
As early as 1948, in Subido v. Ozaeta,[108] the Court has
recognized the statutory right to examine and inspect public
records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in both
the 1973 Constitution and the 1987 Constitution, has been
recognized as a self-executory constitutional right. [109]
In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the
Court ruled that access to public records is predicated on the right
of the people to acquire information on matters of public concern
since, undoubtedly, in a democracy, the pubic has a legitimate
interest in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of information
in a democracy. There can be no realistic perception by the public
of the nations problems, nor a meaningful democratic decisionmaking if they are denied access to information of general
interest. Information is needed to enable the members of society
to cope with the exigencies of the times. As has been aptly
observed: Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since, if
either process is interrupted, the flow inevitably ceases. x x x [111]
In the same way that free discussion enables
members of society to cope with the exigencies of their
time, access to information of general interest aids the
people in democratic decision-making by giving them a
better perspective of the vital issues confronting the
nation[112] so that they may be able to criticize and
participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas
among a well-informed public that a government remains
responsive to the changes desired by the people. [113]
The MOA-AD is a matter of public concern

212 | P a g e

That the subject of the information sought in the present cases is a

matter of public concern[114] faces no serious challenge. In
fact, respondents admit that the MOA-AD is indeed of public
concern.[115] In previous cases, the Court found that the regularity
of real estate transactions entered in the Register of Deeds, [116] the
need for adequate notice to the public of the various laws, [117]the
civil service eligibility of a public employee, [118] the proper
management of GSIS funds allegedly used to grant loans to public
officials,[119] the recovery of the Marcoses alleged ill-gotten wealth,
[120]
and the identity of party-list nominees,[121] among others, are
matters of public concern. Undoubtedly, the MOA-AD subject
of the present cases is of public concern, involving as it
does the sovereignty and territorial integrity of the State,
which directly affects the lives of the public at large.
Matters of public concern covered by the right to information
include steps and negotiations leading to the consummation of the
contract. In not distinguishing as to the executory nature or
commercial character of agreements, the Court has categorically
ruled:
x x x [T]he right to information contemplates inclusion
of negotiations leading to the consummation of the
transaction. Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise,
the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for
the public to expose its defects.
Requiring a consummated contract will keep the public in
the dark until the contract, which may be grossly disadvantageous
to the government or even illegal, becomes fait accompli. This
negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could not
have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposedcontract,
effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional
right, nor a retreat by the State of its avowed policy of full
disclosure
of
all
its
transactions
involving
public
interest.[122] (Emphasis and italics in the original)
Intended as a splendid symmetry[123] to the right to
information under the Bill of Rights is the policy of

PALISOC & SARMIENTO

public disclosureunder Section 28, Article II of the Constitution

reading:
Sec. 28. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.[124]
The policy of full public disclosure enunciated in abovequoted Section 28 complements the right of access to information
on matters of public concern found in the Bill of Rights. The right
to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to
give information even if nobody demands.[125]
The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open
democracy, with the peoples right to know as the centerpiece. It is
a mandate of the State to be accountable by following such policy.
[126]
These provisions are vital to the exercise of the freedom of
expression and essential to hold public officials at all times
accountable to the people.[127]
Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will
not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public
ethics immediately but, of course, the implementing law will have
to be enacted by Congress, Mr. Presiding Officer.[128]
The following discourse, after Commissioner Hilario Davide, Jr.,
sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause as may
be provided by law

213 | P a g e

MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said
earlier that it should immediately influence the climate of
the conduct of public affairs but, of course, Congress here may
no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy. [129] (Emphasis
supplied)
Indubitably, the effectivity of the policy of public
disclosure need not await the passing of a statute. As
Congress cannot revoke this principle, it is merely directed to
provide for reasonable safeguards. The complete and effective
exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same selfexecutory nature. Since both provisions go hand-in-hand, it is
absurd to say that the broader[130] right to information on matters of
public concern is already enforceable while the correlative duty of
the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot
thus point to the absence of an implementing legislation as an
excuse in not effecting such policy.
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the
peoples will.[131] Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the
people be able to participate? Will the government provide
feedback mechanisms so that the people can participate
and can react where the existing media facilities are not
able to provide full feedback mechanisms to the
government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a
feedback, both ways.
xxxx

PALISOC & SARMIENTO

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last
sentence?
I think when we talk about the feedback network, we are
not talking about public officials but also network of private
business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid
that there will be another OMA in the making. [132](Emphasis
supplied)
The imperative of a public consultation, as a species of the
right to information, is evident in the marching orders to
respondents. The mechanics for the duty to disclose information
and to conduct public consultation regarding the peace agenda and
process is manifestly provided by E.O. No. 3.[133] The preambulatory
clause of E.O. No. 3 declares that there is a need to further enhance
the contribution of civil society to the comprehensive peace
process by institutionalizing the peoples participation.
One of the three underlying principles of the comprehensive peace
process is that it should be community-based, reflecting the
sentiments, values and principles important to all Filipinos and
shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one
community.[134] Included as a component of the comprehensive
peace process is consensus-building and empowerment for peace,
which includes continuing consultations on both national and local
levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of peoples participation in the peace
process.[135]
Clearly, E.O. No. 3 contemplates not just the conduct of
a plebiscite to effectuate continuing consultations,
contrary to respondents position that plebiscite is more
than sufficient consultation.[136]
Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to [c]onduct regular
dialogues with the National Peace Forum (NPF) and other peace
partners
to
seek
relevant
information,
comments,
recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace
process.[137] E.O. No. 3 mandates the establishment of the NPF to
be the principal forum for the PAPP to consult with and seek

214 | P a g e

advi[c]e from the peace advocates, peace partners and concerned

sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on
peace agenda and initiatives.[138]
In fine, E.O. No. 3 establishes petitioners right to be
consulted on the peace agenda, as a corollary to the
constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when
he failed to carry out the pertinent consultation. The furtive
process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts
to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof.
The Court may not, of course, require the PAPP to conduct
the consultation in a particular way or manner. It may, however,
require him to comply with the law and discharge the
functions within the authority granted by the President.[139]
Petitioners are not claiming a seat at the negotiating table,
contrary to respondents retort in justifying the denial of
petitioners right to be consulted. Respondents stance manifests
the manner by which they treat the salient provisions of E.O. No. 3
on peoples participation. Such disregard of the express mandate
of the President is not much different from superficial conduct
toward token provisos that border on classic lip service. [140] It
illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
As for respondents invocation of the doctrine of executive
privilege, it is not tenable under the premises. The argument
defies sound reason when contrasted with E.O. No. 3s explicit
provisions on continuing consultation and dialogue on both national
and local levels. The executive order even recognizes the
exercise of the publics right even before the GRP makes its
official recommendations or before the government proffers its
definite propositions.[141] It bear emphasis that E.O. No. 3 seeks to
elicit
relevant
advice,
information,
comments
and
recommendations from the people through dialogue.

PALISOC & SARMIENTO

AT ALL EVENTS, respondents effectively waived the defense

of executive privilege in view of their unqualified disclosure of the
official copies of the final draft of the MOA-AD. By unconditionally
complying with the Courts August 4, 2008 Resolution, without a
prayer for the documents disclosure in camera, or without a
manifestation that it was complying therewith ex abundante ad
cautelam.
Petitioners assertion that the Local Government Code (LGC)
of 1991 declares it a State policy to require all national agencies
and offices to conduct periodic consultations with appropriate local
government units, non-governmental and people's organizations,
and other concerned sectors of the community before any project
or program is implemented in their respective jurisdictions [142] is
well-taken. The LGC chapter on intergovernmental relations puts
flesh into this avowed policy:
Prior Consultations Required. No project or program
shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects
are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the
provisions of the Constitution.[143] (Italics and underscoring
supplied)
In Lina, Jr. v. Hon. Pao,[144] the Court held that the abovestated policy and above-quoted provision of the LGU apply only to
national programs or projects which are to be implemented in a
particular local community. Among the programs and projects
covered are those that are critical to the environment and human
ecology including those that may call for the eviction of a particular
group of people residing in the locality where these will be
implemented.[145] The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people,[146] which could
pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their
total environment.
With
respect
to
the
indigenous
cultural
communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to
participate fully at all levels of decision-making in matters which

215 | P a g e

may affect their rights, lives and destinies. [147] The MOA-AD, an
instrument recognizing ancestral domain, failed to justify its noncompliance with the clear-cut mechanisms ordained in said Act,
[148]
which entails, among other things, the observance of the free
and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department
or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise. The
recognition of the ancestral domain is the raison detre of the MOAAD, without which all other stipulations or consensus points
necessarily must fail. In proceeding to make a sweeping
declaration on ancestral domain, without complying with the IPRA,
which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to necessary
changes to the legal framework. While paragraph 7 on Governance
suspends the effectivity of all provisions requiring changes to the
legal framework, such clause is itself invalid, as will be discussed in
the following section.
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available always to
public cognizance. This has to be so if the country is to remain
democratic, with sovereignty residing in the people and all
government authority emanating from them.[149]
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no
question that they cannot all be accommodated under the present
Constitution and laws. Respondents have admitted as much in the
oral arguments before this Court, and the MOA-AD itself recognizes
the need to amend the existing legal framework to render effective
at least some of its provisions. Respondents, nonetheless, counter
that the MOA-AD is free of any legal infirmity because any
provisions therein which are inconsistent with the present legal
framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be
considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws
as presently worded.

PALISOC & SARMIENTO

In general, the objections against the MOA-AD center on the

extent of the powers conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE exceed those granted to
any local government under present laws, and even go beyond
those of the present ARMM. Before assessing some of the specific
powers that would have been vested in the BJE, however, it would
be useful to turn first to a general idea that serves as a unifying link
to the different provisions of the MOA-AD, namely, the international
law concept of association. Significantly, the MOA-AD explicitly
alludes to this concept, indicating that the Parties actually framed
its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY,
paragraph
11
on
RESOURCES,
and
paragraph
4
on
GOVERNANCE. It is in the last mentioned provision, however, that
the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.
4. The relationship between the Central Government and
the Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial and
administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established
in a comprehensive peace compact specifying the relationship
between the Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the associative relationship may have been
intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a
concept of association in international law, and the MOA-AD by
its inclusion of international law instruments in its TOR placed
itself in an international legal context, that concept of association
may be brought to bear in understanding the use of the term
associative in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to the
other, the principal, while maintaining its international
status as a state. Free associations represent a middle
ground between integration and independence.
x x
x[150] (Emphasis and underscoring supplied)

216 | P a g e

Vincent and Grenada. All have since become independent states.

For purposes of illustration, the Republic of the Marshall
Islands and the Federated States of Micronesia (FSM), formerly part
of the U.S.-administered Trust Territory of the Pacific Islands, [151] are
associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar,
indicating their very close ties with the U.S., yet they issue their
own travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN
Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall
Islands and the FSM generally have the capacity to conduct foreign
affairs in their own name and right, such capacity extending to
matters such as the law of the sea, marine resources, trade,
banking, postal, civil aviation, and cultural relations. The U.S.
government, when conducting its foreign affairs, is obligated to
consult with the governments of the Marshall Islands or the FSM on
matters which it (U.S. government) regards as relating to or
affecting either government.
In the event of attacks or threats against the Marshall Islands
or the FSM, the U.S. government has the authority and obligation to
defend
them
as
if
they
were
part
of
U.S.
territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of
any third country from having access to these territories for military
purposes.
It bears noting that in U.S. constitutional and international
practice, free association is understood as an international
association between sovereigns. The Compact of Free Association
is a treaty which is subordinate to the associated nations national
constitution, and each party may terminate the association
consistent with the right of independence. It has been said
that,with the admission of the U.S.-associated states to the UN in
1990, the UN recognized that the American model of free
association is actually based on an underlying status
of independence.[152]
In international practice, the associated state arrangement
has usually been used as a transitional device of former colonies
on their way to full independence. Examples of states that have
passed through the status of associated states as a transitional
phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St.

PALISOC & SARMIENTO

[153]

Back to the MOA-AD, it contains many provisions which are

consistent with the international legal concept of association,
specifically the following: the BJEs capacity to enter into economic
and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJEs participation in meetings
and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external
defense. Moreover, the BJEs right to participate in Philippine
official missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments
ofFSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of
anassociated state or, at any rate, a status closely
approximating it.
The
of association is not recognized
Constitution

under

the

concept
present

No province, city, or municipality, not even the ARMM, is

recognized under our laws as having an associative relationship
with the national government. Indeed, the concept implies powers
that go beyond anything ever granted by the Constitution to any
local or regional government. It also implies the recognition of
the associated entity as a state. The Constitution, however, does
not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status
that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-ADs
provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the following
provisions of Article X:
SECTION 1. The territorial and political subdivisions of the
Republic
of
the Philippines are
the provinces,
cities,
municipalities, and barangays. There shall be autonomous

217 | P a g e

regions in Muslim Mindanao and the Cordilleras as hereinafter

provided.
SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of
thePhilippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but
name as it meets the criteria of a state laid down in the
Montevideo Convention,[154] namely, a permanent population,
a defined territory, a government, and a capacity to enter into
relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily
sever any portion of Philippine territory, the spirit animating it
which has betrayed itself by its use of the concept
of association runs counter to the national sovereignty and
territorial integrity of the Republic.
The defining concept underlying the relationship between
the national government and the BJE being itself contrary
to the present Constitution, it is not surprising that many of
the specific provisions of the MOA-AD on the formation and
powers of the BJE are in conflict with the Constitution and
the laws.
Article X, Section 18 of the Constitution provides that [t]he
creation of the autonomous
region shall be effective when
approved by a majority of the votes cast by the constituent units in
a plebiscite called for the purpose, provided that only provinces,
cities, and geographic areas voting favorably in such
plebiscite
shall
be
included
in
the
autonomous
region. (Emphasis supplied)
As reflected above, the BJE is more of a state than an
autonomous region. But even assuming that it is covered by the

PALISOC & SARMIENTO

term autonomous region in the constitutional provision just

quoted, the MOA-AD would still be in conflict with it. Under
paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the
municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal are automatically part of the BJE without
need of another plebiscite, in contrast to the areas under
Categories A and B mentioned earlier in the overview. That the
present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however,
does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for then
was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as
follows:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1)
Administrative organization;
(2)
Creation of sources of revenues;
(3)
Ancestral domain and natural resources;
(4)
Personal, family, and property relations;
(5)
Regional urban and rural planning development;
(6)
Economic, social, and tourism development;
(7)
Educational policies;
(8)
Preservation and development of the cultural heritage; and
(9)
Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the
region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an amendment that
would expand the above-quoted provision. The mere passage of
new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that
might vest in the BJE the powers found in the MOA-AD must, itself,
comply with other provisions of the Constitution. It would not do,
for instance, to merely pass legislation vesting the BJE with treaty-

218 | P a g e

making power in order to accommodate paragraph 4 of the strand

on RESOURCES which states: The BJE is free to enter into any
economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do
not include aggression against the Government of the Republic of
the Philippines x x x. Under our constitutional system, it is only
the President who has that power. Pimentel v. Executive
Secretary[155] instructs:
In our system of government, the President, being the head
of state, is regarded as the sole organ and authority in
external relations and is the country's sole representative
with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states. (Emphasis
and underscoring supplied)
Article II, Section 22 of the Constitution must also be
amended if the scheme envisioned in the MOA-AD is to be
effected. That constitutional provision states: The State
recognizes and promotes the rights of indigenous cultural
communitieswithin
the
framework
of national
unity and
development. (Underscoring
supplied) An associative arrangement does not uphold national
unity. While there may be a semblance of unity because of the
associative ties between the BJE and the national government,the
act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which
are R.A. No. 9054[156] or the Organic Act of the ARMM, and
the IPRA.[157]
Article X, Section 3 of the Organic Act of the ARMM is
a bar to the adoption of the definition of Bangsamoro
people used in the MOA-AD. Paragraph 1 on CONCEPTS AND
PRINCIPLES states:

PALISOC & SARMIENTO

1. It is the birthright of all Moros and all Indigenous peoples

of Mindanao to identify themselves and be accepted as
Bangsamoros. The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at
the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are classified
as Bangsamoro. The freedom of choice of the Indigenous people
shall be respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with
that found in the Article X, Section 3 of the Organic Act, which,
rather than lumping together the identities of the Bangsamoro and
other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:
As used in this Organic Act, the phrase indigenous cultural
community refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers
in Islam and who have retained some or all of their own
social, economic, cultural, and political institutions.
Respecting the IPRA, it lays down the prevailing procedure for
the delineation and recognition of ancestral domains. The MOAADs manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of TERRITORY, the Parties simply agree that, subject to
the delimitations in the agreed Schedules, [t]he Bangsamoro
homeland and historic territory refer to the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the MindanaoSulu-Palawan geographic region.
Chapter VIII of the IPRA, on the other hand, lays down a
detailed procedure, as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:

219 | P a g e

xxxx
b)
Petition for Delineation. The process of delineating a
specific perimeter may be initiated by the NCIP with the consent of
the ICC/IP concerned, or through a Petition for Delineation filed with
the NCIP, by a majority of the members of the ICCs/IPs;
c)
Delineation Proper. The official delineation of ancestral
domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral Domains
Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community
concerned and shall at all times include genuine involvement and
participation by the members of the communities concerned;
d)
Proof Required. Proof of Ancestral Domain Claims shall
include the testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written
institution;

accounts

of

the

ICCs/IPs

political

structure

and

3) Pictures showing long term occupation such as those of old

improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal
forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such
as mountains, rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect
of the community.
e)
Preparation of Maps. On the basis of such investigation
and the findings of fact based thereon, the Ancestral Domains
Office of the NCIP shall prepare a perimeter map, complete with
technical descriptions, and a description of the natural features and
landmarks embraced therein;
f)
Report of Investigation and Other Documents. A
complete copy of the preliminary census and a report of
investigation, shall be prepared by the Ancestral Domains Office of
the NCIP;
g)
Notice and Publication. A copy of each document,
including a translation in the native language of the ICCs/IPs
concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at
the local, provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a week for two
(2) consecutive weeks to allow other claimants to file opposition
thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;
h)
Endorsement to NCIP. Within fifteen (15) days from
publication, and of the inspection process, the Ancestral Domains
Office shall prepare a report to the NCIP endorsing a favorable
action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains
Office shall require the submission of additional evidence: Provided,
That the Ancestral Domains Office shall reject any claim that is
deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due notice, copy
furnished all concerned, containing the grounds for denial. The
denial shall be appealable to the NCIP: Provided, furthermore, That
in cases where there are conflicting claims among ICCs/IPs on the
boundaries of ancestral domain claims, the Ancestral Domains
Office shall cause the contending parties to meet and assist them
in coming up with a preliminary resolution of the conflict, without
prejudice to its full adjudication according to the section below.
xxxx

PALISOC & SARMIENTO

220 | P a g e

To remove all doubts about the irreconcilability of the MOA-AD with

the present legal system, a discussion of not only the Constitution
and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land.
Applying this provision of the Constitution, the Court, in Mejoff v.
Director of Prisons,[158] held that the Universal Declaration of Human
Rights is part of the law of the land on account of which it ordered
the release on bail of a detained alien of Russian descent whose
deportation order had not been executed even after two
years. Similarly, the Court in Agustin v. Edu[159] applied the
aforesaid constitutional provision to the 1968 Vienna Convention on
Road Signs and Signals.
International law has long recognized the right to selfdetermination of peoples, understood not merely as the entire
population of a State but also a portion thereof. In considering the
question of whether the people of Quebec had a right to unilaterally
secede from Canada, the Canadian Supreme Court in REFERENCE
RE SECESSION OF QUEBEC[160] had occasion to acknowledge that
the right of a people to self-determination is now so widely
recognized in international conventions that the principle has
acquired a status beyond convention and is considered a general
principle of international law.
Among the conventions referred to are the International Covenant
on Civil and Political Rights [161] and the International Covenant on
Economic, Social and Cultural Rights [162] which state, in Article 1 of
both covenants, that all peoples, by virtue of the right of selfdetermination, freely determine their political status and freely
pursue their economic, social, and cultural development.
The peoples right to self-determination should not, however,
be understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and
external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:
(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish
that the right to self-determination of a people is normally
fulfilled
throughinternal self-determination a
peoples

PALISOC & SARMIENTO

pursuit of its political, economic, social and cultural

development within the framework of an existing state. A
right to external self-determination (which in this case
potentially takes the form of the assertion of a right to
unilateral secession) arises in only the most extreme of
cases and,
even
then,
under
carefully
defined
circumstances. x x x
External self-determination can be defined as in the
following statement from the Declaration on Friendly
Relations, supra, as
The establishment of a sovereign and independent State,
the free association or integration with an independent
State or the emergence into any other political status freely
determined by a people constitute modes of implementing the
right of self-determination bythat people. (Emphasis added)
127. The
international
law
principle
of
selfdetermination has evolved within a framework of respect
for the territorial integrity of existing states. The various
international documents that support the existence of a peoples
right to self-determination also contain parallel statements
supportive of the conclusion that the exercise of such a right must
be sufficiently limited to prevent threats to an existing states
territorial integrity or the stability of relations between sovereign
states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases
in which the right to external self-determination can arise, namely,
where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and less
definitely but asserted by a number of commentators is blocked
from the meaningful exercise of its right to internal selfdetermination. The Court ultimately held that the population of
Quebec had no right to secession, as the same is not under colonial
rule or foreign domination, nor is it being deprived of the freedom
to make political choices and pursue economic, social and cultural
development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada, even
occupying prominent positions therein.
The exceptional nature of the right of secession is further
exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF

221 | P a g e

JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS

QUESTION.[163] There, Swedenpresented
to
the
Council
of
the League of Nations the question of whether the inhabitants of
the Aaland Islands should be authorized to determine by plebiscite
if the archipelago should remain under Finnish sovereignty or be
incorporated in the kingdom of Sweden. The Council, before
resolving the question, appointed an International Committee
composed of three jurists to submit an opinion on the preliminary
issue of whether the dispute should, based on international law, be
entirely left to the domestic jurisdiction of Finland. The Committee
stated the rule as follows:

sovereign State did not exist. In the midst of revolution, anarchy,

and civil war, the legitimacy of the Finnish national government
was disputed by a large section of the people, and it had, in fact,
been chased from the capital and forcibly prevented from carrying
out its duties. The armed camps and the police were divided into
two opposing forces. In light of these circumstances, Finland was
not, during the relevant time period, a definitively constituted
sovereign state. The Committee, therefore, found that Finland did
not possess the right to withhold from a portion of its population
the option to separate itself a right which sovereign nations
generally have with respect to their own populations.

x x x [I]n the absence of express provisions in international

treaties, the right of disposing of national territory is
essentially an attribute of the sovereignty of every
State. Positive International Law does not recognize the
right of national groups, as such, to separate themselves
from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of
other States to claim such a separation. Generally speaking, the
grant or refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some
other method, is, exclusively, an attribute of the
sovereignty
of
every
State which
is
definitively
constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic jurisdiction
of one of the States concerned. Any other solution would amount
to an infringement of sovereign rights of a State and would involve
the risk of creating difficulties and a lack of stability which would
not only be contrary to the very idea embodied in term State, but
would also endanger the interests of the international
community. If this right is not possessed by a large or small section
of a nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis
and underscoring supplied)

Turning
now
to
the
more
specific
category
of indigenous peoples, this term has been used, in scholarship as
well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land
(spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as
indigenous since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated,
indigenous peoples, nations, or communities are culturally
distinctive groups that find themselves engulfed by settler societies
born of the forces of empire and conquest. [164] Examples of groups
who have been regarded as indigenous peoples are the Maori of
New Zealand and the aboriginal peoples of Canada.

The Committee held that the dispute concerning the Aaland Islands
did not refer to a question which is left by international law to the
domestic jurisdiction of Finland, thereby applying the exception
rather than the rule elucidated above. Its ground for departing
from the general rule, however, was a very narrow one, namely,
the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation
of Finland was, according to the Committee, so abnormal that, for a
considerable time, the conditions required for the formation of a

PALISOC & SARMIENTO

As with the broader category of peoples, indigenous

peoples situated within states do not have a general right to
independence or secession from those states under international
law,[165] but they do have rights amounting to what was discussed
above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN
General Assembly adopted the United Nations Declaration on the
Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippinesbeing
included among those in favor, and the four voting against
being Australia, Canada, New
Zealand,
and
the U.S. The
Declaration clearly recognized the right of indigenous peoples to
self-determination, encompassing the right to autonomy or selfgovernment, to wit:
Article 3
Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.

222 | P a g e

Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters
relating to theirinternal and local affairs, as well as ways and
means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in
the political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse
pertaining to indigenous peoples, has been understood as
equivalent to internal self-determination. [166] The extent of selfdetermination provided for in the UN DRIP is more particularly
defined in its subsequent articles, some of which are quoted
hereunder:
Article 8
1.
Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2.
States shall provide effective mechanisms for
prevention of, and redress for:
(a)
Any action which has the aim or effect of depriving
them of their integrity as distinct peoples, or of their
cultural values or ethnic identities;
(b)
Any action which has the aim or effect of
dispossessing them of their lands, territories or resources;
(c)
Any form of forced population transfer which has the
aim or effect of violating or undermining any of their rights;
(d)
Any form of forced assimilation or integration;
(e)
Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1.
Indigenous peoples have the right, without discrimination, to
the improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational
training and retraining, housing, sanitation, health and social
security.
2.
States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to

PALISOC & SARMIENTO

the rights and special needs of indigenous elders, women, youth,

children and persons with disabilities.
Article 26
1.
Indigenous peoples have the right to the lands,
territories and resources which they have traditionally
owned, occupied or otherwise used or acquired.
2.
Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3.
States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.
Article 30
1.
Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by a relevant
public interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.
2.
States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate procedures and
in particular through their representative institutions, prior to using
their lands or territories for military activities.
Article 32
1.
Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands or
territories and other resources.
2.
States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior
to the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3.
States shall provide effective mechanisms for just and fair
redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social, cultural
or spiritual impact.

223 | P a g e

Article 37
1.
Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2.
Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in
treaties, agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples,
shall take the appropriate measures, including legislative
measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on

Human Rights, must now be regarded as embodying customary
international law a question which the Court need not definitively
resolve here the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the
instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of
the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States
now guarantee indigenous peoples their own police and internal
security force. Indeed, Article 8 presupposes that it is the State
which will provide protection for indigenous peoples against acts
like the forced dispossession of their lands a function that is
normally performed by police officers. If the protection of a right
so essential to indigenous peoples identity is acknowledged to be
the responsibility of the State, then surely the protection of rights
less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the
right of indigenous peoples to the aerial domain and atmospheric
space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or
acquired.

PALISOC & SARMIENTO

Moreover, the UN DRIP, while upholding the right of

indigenous peoples to autonomy, does not obligate States to grant
indigenous peoples the near-independent status of an associated
state. All the rights recognized in that document are qualified
inArticle 46 as follows:
1.
Nothing in this Declaration may be interpreted as
implying for any State, people, group or person any right to engage
in any activity or to perform any act contrary to the Charter of the
United
Nations
or construed
as
authorizing or
encouraging any
action
which
would
dismember or
impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the
land pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains
numerous provisions that cannot be reconciled with the
Constitution and the laws as presently worded. Respondents
proffer, however, that the signing of the MOA-AD alone would not
have entailed any violation of law or grave abuse of discretion on
their part, precisely because it stipulates that the provisions thereof
inconsistent with the laws shall not take effect until
these
laws are amended. They cite paragraph 7 of the
MOA-AD strand on GOVERNANCE quoted earlier, but which is
reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected. While the
word Constitution is not mentioned in the provision now
under consideration or anywhere else in the MOA-AD, the

224 | P a g e

term legal framework is certainly broad enough to

include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by
their mere act of incorporating in the MOA-AD the provisions
thereof regarding the associative relationship between the BJE and
the Central Government, have already violated the Memorandum of
Instructions From The President dated March 1, 2001, which states
that the negotiations shall be conducted in accordance with x x x
the principles of the sovereignty and territorial integrity of the
Republic of the Philippines. (Emphasis supplied) Establishing an
associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an
independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the
MOA-AD is defective because the suspensive clause is invalid, as
discussed below.
The authority of the GRP Peace Negotiating Panel to
negotiate with the MILF is founded on E.O. No. 3, Section 5(c),
which states that there shall be established Government Peace
Negotiating Panels for negotiations with different rebel groups to be
appointed by the President as her official emissaries to conduct
negotiations, dialogues, and face-to-face discussions with rebel
groups. These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting
solutions to the Moro Problem through its negotiations with the
MILF, was not restricted by E.O. No. 3 only to those options
available under the laws as they presently stand. One of the
components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the Paths to Peace, is the pursuit of social,
economic, and political reforms which may require new legislation
or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,[167] states:
SECTION 4. The Six Paths to Peace. The components of the
comprehensive peace process comprise the processes known as
the Paths to Peace. These component processes are interrelated
and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall
include, but may not be limited to, the following:

a.
PURSUIT
OF
SOCIAL,
ECONOMIC
AND
POLITICAL
REFORMS. This
component
involves
the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an
attempt of respondents to address, pursuant to this provision of
E.O. No. 3, the root causes of the armed conflict in Mindanao. The
E.O. authorized them to think outside the box, so to
speak. Hence, they negotiated and were set on signing the MOA-AD
that included various social, economic, and political reforms which
cannot, however, all be accommodated within the present legal
framework, and which thus would require new legislation and
constitutional amendments.
The inquiry on the legality of the suspensive clause,
however, cannot stop here, because it must be asked
whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec.
4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations,
agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted
only to those solutions which the present laws allow? The answer
to this question requires a discussion of
the extent of the Presidents power to conduct peace
negotiations.
That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned in the
Constitution does not mean that she has no such authority.
In Sanlakas v. Executive Secretary,[168] in issue was the authority of
the President to declare a state of rebellion an authority which is
not expressly provided for in the Constitution. The Court held thus:
In her ponencia in Marcos v. Manglapus, Justice Cortes put
her thesis into jurisprudence. There, the Court, by a slim 8-7

PALISOC & SARMIENTO

225 | P a g e

margin, upheld the President's power to forbid the return of her

exiled predecessor. The rationale for the majority's ruling rested on
the President's
. . . unstated residual powers which are implied from
the grant of executive power and which are necessary for
her to comply with her duties under the Constitution. The
powers of the President are not limited to what are
expressly enumerated in the article on the Executive
Department
and
in
scattered
provisions
of
the
Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general
grant of executive power.
Thus, the President's authority to declare a state of
rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her
Commander-in-Chief
powers.
x
x
x (Emphasis
and
underscoring supplied)
Similarly, the Presidents power to conduct peace negotiations is
implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the
general responsibility to promote public peace, and as Commanderin-Chief, she has the more specific duty to prevent and suppress
rebellion and lawless violence.[169]
As the experience of nations which have similarly gone
through internal armed conflict will show, however, peace is rarely
attained by simply pursuing a military solution. Oftentimes,
changes as far-reaching as a fundamental reconfiguration of the
nations constitutional structure is required. The observations of Dr.
Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten
years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building,
is unlikely to succeed. On average, more than 50 percent of states
emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited
democracies.

PALISOC & SARMIENTO

The design of a constitution and its constitution-making process

can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map on
how to get there. The constitution can be partly a peace agreement
and partly a framework setting up the rules by which the new
democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on
the nature and legal status of peace agreements, observed that the
typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by linking
them to new constitutional structures addressing governance,
elections, and legal and human rights institutions. [171]
In the Philippine experience, the link between peace agreements
and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the
Constitution on autonomous regions[172] is the framers intention to
implement a particular peace agreement, namely, the Tripoli
Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then
MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some
more questions, I will reserve my right to ask them if they are not
covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it
has, in fact, diminished a great deal of the problems. So, my
question is: since that already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of Chairman
Nolledo. Commissioner Yusup Abubakar is right that certain
definite steps have been taken to implement the provisions
of the Tripoli Agreement with respect to an autonomous
region in Mindanao. This is a good first step, but there is
no question that this is merely a partial response to
the Tripoli Agreement itself and to the fuller standard of
regional autonomy contemplated in that agreement, and
now by state policy.[173]
(Emphasis supplied)
The constitutional provisions on autonomy and the statutes
enacted pursuant to them have, to the credit of their drafters, been

226 | P a g e

partly successful. Nonetheless, the Filipino people are still faced

with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for
bringing this conflict to an end and to achieve lasting peace
inMindanao, then she must be given the leeway to explore, in the
course of peace negotiations, solutions that may require changes to
the Constitution for their implementation. Being uniquely vested
with the power to conduct peace negotiations with rebel groups,
the President is in a singular position to know the precise nature of
their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be prevented
from submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the legal
procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII,
Sections 1 and 3 of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional
convention, or submit to the electorate the question of calling such
a convention.
While the President does not possess constituent powers as
those powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum she
may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,[174] in issue was the legality of then
President Marcos act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973
Constitution
with
the
power
to
propose
such
amendments. President Marcos, it will be recalled, never convened
the interim National Assembly. The majority upheld the Presidents
act, holding that the urges of absolute necessity compelled the
President as the agent of the people to act as he did, there being
no interim National Assembly to propose constitutional
amendments. Against this ruling, Justices Teehankee and Muoz
Palma vigorously dissented. The Courts concern at present,
however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not
disputed by either side.
Justice Teehankees dissent,[175] in particular, bears noting. While he
disagreed that the President may directly submit proposed
constitutional amendments to a referendum, implicit in his opinion

PALISOC & SARMIENTO

is a recognition that he would have upheld the Presidents action

along with the majority had the President convened the interim
National Assembly and coursed his proposals through it. Thus
Justice Teehankee opined:
Since the Constitution provides for the organization of the
essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of such
powers, and the constituent power has not been granted to but has
been withheld from the President or Prime Minister, it follows that
the Presidents questioned decrees proposing and submitting
constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal
basis.[176] (Emphasis supplied)
From the foregoing discussion, the principle may be inferred
that the President in the course of conducting peace negotiations
may validly consider implementing even those policies that
require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act
in any way as if the assent of that body were assumed as a
certainty.
Since, under the present Constitution, the people also have
the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations
to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for
their
independent
consideration
of
whether
these
recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing
more than the Presidents suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may
vitiate its character as a genuine peoples initiative. The only
initiative recognized by the Constitution is that which truly
proceeds from the people. As the Court stated in Lambino v.
COMELEC:[177]
The Lambino Group claims that their initiative is the people's
voice. However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms. The Lambino Group thus admits that their

227 | P a g e

people's initiative is an unqualified support to the agenda of

the incumbent President to change the Constitution. This forewarns
the Court to be wary of incantations of people's voice or
sovereign will in the present initiative.
It will be observed that the President has authority, as stated in her
oath
of
office,[178] only
to preserve
and
defend
the
Constitution. Such presidential power does not, however, extend to
allowing her to change the Constitution, but simply to recommend
proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure
for
constitutional
amendments
and
revision,
her mere
recommendation need not be construed as an unconstitutional
act.
The foregoing discussion focused on the Presidents authority to
propose constitutional amendments, since her authority to
propose new legislation is not in controversy. It has been an
accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is
usually done is in the yearly State of the Nation Address of the
President
to
Congress. Moreover,
the
annual
general
appropriations bill has always been based on the budget prepared
by the President, which for all intents and purposes is a proposal
for new legislation coming from the President. [179]
The suspensive clause in the MOA-AD viewed in light of
the above-discussed standards
Given the limited nature of the Presidents authority to propose
constitutional amendments, she cannot guarantee to any third
party that the required amendments will eventually be put in place,
nor even be submitted to a plebiscite. The most she could do is
submit these proposals as recommendations either to Congress or
the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present
Constitution and laws shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework. This stipulation does not bear
the marks of a suspensive condition defined in civil law as a
future and uncertain event but of a term. It is not a question
of whether the necessary changes to the legal framework will be
effected, but when. That there is no uncertainty being
contemplated is plain from what follows, for the paragraph goes on
to state that the contemplated changes shall be with due regard to

PALISOC & SARMIENTO

non derogation of prior agreements and within the stipulated

timeframe to be contained in the Comprehensive Compact.
Pursuant to this stipulation, therefore, it is mandatory for
the GRP to effect the changes to the legal framework contemplated
in the MOA-AD which changes would include constitutional
amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD
itself would be counted among the prior agreements from
which there could be no derogation.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these consensus points
and, notably, the deadline for effecting the contemplated changes
to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent
with the limits of the Presidents authority to propose
constitutional amendments, it being a virtual guarantee that the
Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the consensus points
found in the MOA-AD. Hence, it must be struck down
asunconstitutional.
A comparison between the suspensive clause of the MOA-AD with
a similar provision appearing in the 1996 final peace agreement
between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it
would be implemented in two phases. Phase I covered a threeyear transitional period involving the putting up of new
administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the
Southern Philippines Council for Peace and Development (SPCPD),
while Phase II covered the establishment of the new regional
autonomous government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the
parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the
necessary changes to the legal framework will be put in
place, the GRP-MNLF final peace agreement states thus:

228 | P a g e

Accordingly,
these
provisions
[on
Phase
II]
shall
be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law.
Concerns have been raised that the MOA-AD would have
given rise to a binding international law obligation on the part of
the Philippines to change its Constitution in conformity thereto, on
the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of
the Philippine government to the international community that it
would grant to the Bangsamoro people all the concessions therein
stated. Neither ground finds sufficient support in international law,
however.
The MOA-AD, as earlier mentioned in the overview thereof, would
have included foreign dignitaries as signatories. In addition,
representatives of other nations were invited to witness its signing
in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding
international agreement had it been signed. An examination of the
prevailing principles in international law, however, leads to the
contrary conclusion.
The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD
AMNESTY[180] (the Lom Accord case) of the Special Court of Sierra
Leone is enlightening. The Lom Accord was a peace agreement
signed on July 7, 1999 between the Government of Sierra Leone
and the Revolutionary United Front (RUF), a rebel group with which
the Sierra Leone Government had been in armed conflict for around
eight years at the time of signing. There were non-contracting
signatories to the agreement, among which were the Government
of the Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another
agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The
sole purpose of the Special Court, an international court, was to try
persons who bore the greatest responsibility for serious violations
of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November 30,
1996.
Among the stipulations of the Lom Accord was a provision for the
full pardon of the members of the RUF with respect to anything

PALISOC & SARMIENTO

done by them in pursuit of their objectives as members of that

organization since the conflict began.
In the Lom Accord case, the Defense argued that the Accord
created an internationally binding obligation not to prosecute
the beneficiaries of the amnesty provided therein, citing, among
other things, the participation of foreign dignitaries and
international
organizations
in
the
finalization
of
that
agreement. The Special Court, however, rejected this argument,
ruling that the Lome Accord is not a treaty and that it can only
create binding obligations and rights between the parties in
municipal law, not in international law. Hence, the Special Court
held, it is ineffective in depriving an international court like it of
jurisdiction.
37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue
with some degree of plausibility, as Defense counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document
formalizing the settlement is signed by foreign heads of
state or their representatives and representatives of
international organizations, means the agreement of the
parties is internationalized so as to create obligations in
international law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or persons
or bodies under whose auspices the settlement took place but who
are not at all parties to the conflict, are not contracting parties and
who do not claim any obligation from the contracting parties or
incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within
the state. The non-contracting signatories of the Lom
Agreement were moral guarantors of the principle that, in
the terms of Article XXXIV of the Agreement, this peace
agreement is implemented with integrity and in good faith
by both parties. The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding of
the extent of the agreement to be implemented as not including
certain international crimes.

229 | P a g e

42. An international agreement in the nature of a treaty must

create rights and obligations regulated by international law so that
a breach of its terms will be a breach determined under
international law which will also provide principle means of
enforcement. The Lom Agreement created neither rights
nor obligations capable of being regulated by international
law. An agreement such as the Lom Agreement which
brings to an end an internal armed conflict no doubt creates
a factual situation of restoration of peace that the
international community acting through the Security
Council may take note of. That, however, will not convert it
to an international agreement which creates an obligation
enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a
threat to peace in the determination of the Security Council may
indicate a reversal of the factual situation of peace to be visited
with possible legal consequences arising from the new situation of
conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not
from the agreement, nor from the obligation imposed by it. Such
action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot
be ascribed the same status as one which settles an
international armed conflict which, essentially, must be
between two or more warring States. The Lom Agreement
cannot be characterised as an international instrument. x x
x (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it a
binding character under international law.
In another vein, concern has been raised that the MOA-AD would
amount to a unilateral declaration of the Philippine State, binding
under international law, that it would comply with all the
stipulations stated therein, with the result that it would have to
amend its Constitution accordingly regardless of the true will of the
people. Cited as authority for this view is Australia v. France,
[181]
also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality
of
Frances
nuclear
tests
in
the
South
Pacific. France refused to appear in the case, but public statements

PALISOC & SARMIENTO

from its President, and similar statements from other French

officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss
the case.[182] Those statements, the ICJ held, amounted to a legal
undertaking addressed to the international community, which
required no acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international
community in issuing its public statements, viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of
the State making the declaration that it should become
bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of
this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is
binding. In these circumstances, nothing in the nature of a quid pro
quo nor any subsequent acceptance of the declaration, nor even
any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by
which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a
State may choose to take up a certain position in relation to
a particular matter with the intention of being boundthe
intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of
action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric
tests would be the last, the French Government conveyed
to the world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and
rely on their being effective. The validity of these
statements and their legal consequences must be
considered within the general framework of the security of

230 | P a g e

international intercourse, and the confidence and trust which

are so essential in the relations among States. It is from the
actual substance of these statements, and from the
circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The
objects of these statements are clear and they were
addressed to the international community as a whole, and
the Court holds that they constitute an undertaking
possessing legal effect. The Court considers *270 that the
President of the Republic, in deciding upon the effective cessation
of atmospheric tests, gave an undertaking to the international
community to which his words were addressed. x x x (Emphasis
and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public
statements of a state representative may be construed as
aunilateral declaration only when the following conditions are
present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by
its statements, and that not to give legal effect to those statements
would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was
recognized in a later case decided by the ICJ entitled Burkina Faso
v. Mali,[183] also known as the Case Concerning the Frontier
Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a
foreign press agency, that Mali would abide by the decision to be
issued by a commission of the Organization of African Unity on a
frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Malis President was not a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral
act, account must be taken of all the factual circumstances in which
the act occurred. For example, in the Nuclear Tests cases, the
Court took the view that since the applicant States were
not the only ones concerned at the possible continuance of
atmospheric testing by the French Government, that
Government's unilateral declarations had conveyed to the
world at large, including the Applicant, its intention

PALISOC & SARMIENTO

effectively to terminate these tests (I.C.J. Reports 1974, p.

269, para. 51; p. 474, para. 53). In the particular circumstances
of those cases, the French Government could not express
an intention to be bound otherwise than by unilateral
declarations. It is difficult to see how it could have accepted
the terms of a negotiated solution with each of the
applicants without thereby jeopardizing its contention that
its conduct was lawful. The circumstances of the present
case are radically different. Here, there was nothing to
hinder the Parties from manifesting an intention to accept
the binding character of the conclusions of the Organization
of African Unity Mediation Commission by the normal
method:
a
formal
agreement
on
the
basis
of
reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds
to interpret the declaration made by Mali's head of State on 11
April 1975 as a unilateral act with legal implications in regard to the
present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not
have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine
panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State,
but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and
projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the
Lom Accord case, the mere fact that in addition to the parties to
the conflict, the peace settlement is signed by representatives of
states and international organizations does not mean that the
agreement is internationalized so as to create obligations in
international law.
Since the commitments in the MOA-AD were not addressed to
States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse to the trust
and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOAAD are closer to that of Burkina Faso wherein, as already discussed,
the Mali Presidents statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its
intention to be bound to other States, to manifest that intention by
formal agreement. Here, that formal agreement would have come

231 | P a g e

about by the inclusion in the MOA-AD of a clear commitment to be

legally bound to the international community, not just the MILF, and
by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance
of that commitment. Entering into such a formal agreement would
not have resulted in a loss of face for the Philippine government
before the international community, which was one of the
difficulties that prevented the French Government from entering
into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it
had no intention to be bound to the international community. On
that ground, the MOA-AD may not be considered a unilateral
declaration under international law.
The MOA-AD not being a document that can bind the
Philippines under international law notwithstanding, respondents
almost consummated act of guaranteeing amendments to the
legal framework is, by itself, sufficient to constitute grave
abuse of discretion. The grave abuse lies not in the fact that
they considered, as a solution to the Moro Problem, the creation of
a state within a state, but in their brazen willingness
to guarantee that Congress and the sovereign Filipino
people
would
give
their
imprimatur
to
their
solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue
influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of
giving up a portion of its own territory to the Moros for the sake of
peace, for it can change the Constitution in any it wants, so long as
the change is not inconsistent with what, in international law, is
known as Jus Cogens.[184] Respondents, however, may not preempt
it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents
to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under
E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any
alleged violation of the Constitution by any branch of government
is a proper matter for judicial review.

PALISOC & SARMIENTO

As the petitions involve constitutional issues which are of

paramount public interest or of transcendental importance, the
Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with
the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing
of the MOA-AD and the eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds that the present
petitions provide an exception to the moot and academic
principle in view of (a) the grave violation of the Constitution
involved; (b) the exceptional character of the situation and
paramount public interest; (c) the need to formulate controlling
principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on Peace
signed by the government and the MILF back in June 2001. Hence,
the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions
compared to the original.
The Court, however, finds that the prayers for mandamus
have been rendered moot in view of the respondents action in
providing the Court and the petitioners with the official copy of the
final draft of the MOA-AD and its annexes.
The peoples right to information on matters of public
concern under Sec. 7, Article III of the Constitution is in splendid
symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of the
Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the
duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to
information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public
concern involving public interest in the highest order. In declaring
that the right to information contemplates steps and negotiations
leading to the consummation of the contract, jurisprudence finds
no distinction as to the executory nature or commercial character
of the agreement.

232 | P a g e

An essential element of these twin freedoms is to keep a continuing

dialogue or process of communication between the government
and the people. Corollary to these twin rights is the design for
feedback mechanisms. The right to public consultation was
envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the peoples right to be
consulted on relevant matters relating to the peace agenda.

IN SUM, the Presidential Adviser on the Peace Process

committed grave abuse of discretion when he failed to carry out
the pertinent consultation process, as mandated by E.O. No. 3,
Republic Act No. 7160, and Republic Act No. 8371. The furtive
process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise
thereof. It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.

One, E.O. No. 3 itself is replete with mechanics for continuing

consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the
Presidential Adviser on the Peace Process to conduct regular
dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of
society.

The MOA-AD cannot be reconciled with the present

Constitution and laws. Not only its specific provisions but the
veryconcept underlying them, namely, the associative relationship
envisioned
between
the
GRP
and
the
BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way
to independence.

Two, Republic Act No. 7160 or the Local Government Code of

1991 requires all national offices to conduct consultations before
any project or program critical to the environment and human
ecology including those that may call for the eviction of a particular
group of people residing in such locality, is implemented
therein. The MOA-AD is one peculiar program that unequivocally
and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result
to the diaspora or displacement of a great number of inhabitants
from their total environment.

While there is a clause in the MOA-AD stating that the

provisions thereof inconsistent with the present legal framework
will not be effective until that framework is amended, the same
does not cure its defect. The inclusion of provisions in the MOA-AD
establishing an associative relationship between the BJE and the
Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to
the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither
the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.

Three, Republic Act No. 8371 or the Indigenous Peoples

Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which entails,
among other things, the observance of the free and prior informed
consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive
Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a
defense to the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions fly
in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed
the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.

PALISOC & SARMIENTO

While the MOA-AD would not amount to an international agreement

or unilateral declaration binding on the Philippines under
international law, respondents act of guaranteeing amendments is,
by itself, already a constitutional violation that renders the MOA-AD
fatally defective.
WHEREFORE, respondents motion to dismiss is DENIED. The
main and intervening petitions are GIVEN DUE COURSE and hereby
GRANTED.

233 | P a g e

The Memorandum of Agreement on the Ancestral Domain Aspect of

the GRP-MILF
Tripoli
Agreement
on
Peace
of
2001
is
declared CONTRARY TO LAW AND THE CONSTITUTION.
SO ORDERED.

PALISOC & SARMIENTO

234 | P a g e

JENNY M. AGABON and VIRGILIO C. AGABON, Petitioners,

versus NATIONAL LABOR RELATIONS COMMISSION (NLRC),
RIVIERA HOME IMPROVEMENTS, INC and VICENTE ANGELES,
Respondents.
G.R. No. 158693 | 2004-11-17

HUNDRED TWENTY EIGHT & 93/100 (P123,828.93) Pesos for Virgilio

Agabon, as per attached computation of Julieta C. Nicolas, OIC,
Research and Computation Unit, NCR.

DECISION

On appeal, the NLRC reversed the Labor Arbiter because it found

that the petitioners had abandoned their work, and were not
entitled to backwages and separation pay. The other money claims
awarded by the Labor Arbiter were also denied for lack of evidence.
[5]

YNARES-SANTIAGO,

J.:

This petition for review seeks to reverse the decision[1] of the Court
of Appeals dated January 23, 2003, in CA-G.R. SP No. 63017,
modifying the decision of National Labor Relations Commission
(NLRC) in NLRC-NCR Case No. 023442-00.
Private respondent Riviera Home Improvements, Inc. is engaged in
the business of selling and installing ornamental and construction
materials. It employed petitioners Virgilio Agabon and Jenny
Agabon as gypsum board and cornice installers on January 2,
1992[2] until February 23, 1999 when they were dismissed for
abandonment of work.
Petitioners then filed a complaint for illegal dismissal and payment
of money claims[3] and on December 28, 1999, the Labor Arbiter
rendered a decision declaring the dismissals illegal and ordered
private respondent to pay the monetary claims. The dispositive
portion of the decision states:
WHEREFORE, premises considered, We find the termination of the
complainants illegal. Accordingly, respondent is hereby ordered to
pay them their backwages up to November 29, 1999 in the sum of:
1. Jenny M. Agabon - P56, 231.93
2. Virgilio C. Agabon - 56, 231.93
and, in lieu of reinstatement to pay them their separation pay of
one (1) month for every year of service from date of hiring up to
November 29, 1999.
Respondent is further ordered to pay the complainants their holiday
pay and service incentive leave pay for the years 1996, 1997 and
1998 as well as their premium pay for holidays and rest days and
Virgilio Agabon's 13th month pay differential amounting to TWO
THOUSAND ONE HUNDRED FIFTY (P2,150.00) Pesos, or the
aggregate amount of ONE HUNDRED TWENTY ONE THOUSAND SIX
HUNDRED SEVENTY EIGHT & 93/100 (P121,678.93) Pesos for Jenny
Agabon, and ONE HUNDRED TWENTY THREE THOUSAND EIGHT

PALISOC & SARMIENTO

SO ORDERED.[4]

Upon denial of their motion for reconsideration, petitioners filed a

petition for certiorari with the Court of Appeals.
The Court of Appeals in turn ruled that the dismissal of the
petitioners was not illegal because they had abandoned their
employment but ordered the payment of money claims. The
dispositive portion of the decision reads:
WHEREFORE, the decision of the National Labor Relations
Commission is REVERSED only insofar as it dismissed petitioner's
money claims. Private respondents are ordered to pay petitioners
holiday pay for four (4) regular holidays in 1996, 1997, and 1998,
as well as their service incentive leave pay for said years, and to
pay the balance of petitioner Virgilio Agabon's 13th month pay for
1998 in the amount of P2,150.00.
SO ORDERED.[6]
Hence, this petition for review on the sole issue of whether
petitioners were illegally dismissed.[7]
Petitioners assert that they were dismissed because the private
respondent refused to give them assignments unless they agreed
to work on a "pakyaw" basis when they reported for duty on
February 23, 1999. They did not agree on this arrangement
because it would mean losing benefits as Social Security System
(SSS) members. Petitioners also claim that private respondent did
not comply with the twin requirements of notice and hearing.[8]
Private respondent, on the other hand, maintained that petitioners
were not dismissed but had abandoned their work.[9] In fact,
private respondent sent two letters to the last known addresses of
the petitioners advising them to report for work. Private
respondent's manager even talked to petitioner Virgilio Agabon by
telephone sometime in June 1999 to tell him about the new

235 | P a g e

assignment at Pacific Plaza Towers involving 40,000 square meters

of cornice installation work. However, petitioners did not report for
work because they had subcontracted to perform installation work
for another company. Petitioners also demanded for an increase in
their wage to P280.00 per day. When this was not granted,
petitioners stopped reporting for work and filed the illegal dismissal
case.[10]
It is well-settled that findings of fact of quasi-judicial agencies like
the NLRC are accorded not only respect but even finality if the
findings are supported by substantial evidence. This is especially so
when such findings were affirmed by the Court of Appeals.[11]
However, if the factual findings of the NLRC and the Labor Arbiter
are conflicting, as in this case, the reviewing court may delve into
the records and examine for itself the questioned findings.[12]
Accordingly, the Court of Appeals, after a careful review of the
facts, ruled that petitioners' dismissal was for a just cause. They
had abandoned their employment and were already working for
another employer.
To dismiss an employee, the law requires not only the existence of
a just and valid cause but also enjoins the employer to give the
employee the opportunity to be heard and to defend himself.[13]
Article 282 of the Labor Code enumerates the just causes for
termination by the employer: (a) serious misconduct or willful
disobedience by the employee of the lawful orders of his employer
or the latter's representative in connection with the employee's
work; (b) gross and habitual neglect by the employee of his duties;
(c) fraud or willful breach by the employee of the trust reposed in
him by his employer or his duly authorized representative; (d)
commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family or
his duly authorized representative; and (e) other causes analogous
to the foregoing.
Abandonment is the deliberate and unjustified refusal of an
employee to resume his employment.[14] It is a form of neglect of
duty, hence, a just cause for termination of employment by the
employer.[15] For a valid finding of abandonment, these two factors
should be present: (1) the failure to report for work or absence
without valid or justifiable reason; and (2) a clear intention to sever
employer-employee relationship, with the second as the more
determinative factor which is manifested by overt acts from which
it may be deduced that the employees has no more intention to
work. The intent to discontinue the employment must be shown by
clear proof that it was deliberate and unjustified.[16]

PALISOC & SARMIENTO

In February 1999, petitioners were frequently absent having

subcontracted for an installation work for another company.
Subcontracting for another company clearly showed the intention
to sever the employer-employee relationship with private
respondent. This was not the first time they did this. In January
1996, they did not report for work because they were working for
another company. Private respondent at that time warned
petitioners that they would be dismissed if this happened again.
Petitioners disregarded the warning and exhibited a clear intention
to sever their employer-employee relationship. The record of an
employee is a relevant consideration in determining the penalty
that should be meted out to him.[17]
In Sandoval Shipyard v. Clave,[18] we held that an employee who
deliberately absented from work without leave or permission from
his employer, for the purpose of looking for a job elsewhere, is
considered to have abandoned his job. We should apply that rule
with more reason here where petitioners were absent because they
were already working in another company.
The law imposes many obligations on the employer such as
providing just compensation to workers, observance of the
procedural requirements of notice and hearing in the termination of
employment. On the other hand, the law also recognizes the right
of the employer to expect from its workers not only good
performance, adequate work and diligence, but also good
conduct[19] and loyalty. The employer may not be compelled to
continue to employ such persons whose continuance in the service
will patently be inimical to his interests.[20]
After establishing that the terminations were for a just and valid
cause, we now determine if the procedures for dismissal were
observed.
The procedure for terminating an employee is found in Book VI,
Rule I, Section 2(d) of the Omnibus Rules Implementing the Labor
Code:
Standards of due process: requirements of notice. - In all cases of
termination of employment, the following standards of due process
shall be substantially observed:
I. For termination of employment based on just causes as defined in
Article 282 of the Code:

236 | P a g e

(a) A written notice served on the employee specifying the ground

or grounds for termination, and giving to said employee reasonable
opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned,
with the assistance of counsel if the employee so desires, is given
opportunity to respond to the charge, present his evidence or rebut
the evidence presented against him; and
(c) A written notice of termination served on the employee
indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination.
In case of termination, the foregoing notices shall be served on the
employee's last known address.
Dismissals based on just causes contemplate acts or omissions
attributable to the employee while dismissals based on authorized
causes involve grounds under the Labor Code which allow the
employer to terminate employees. A termination for an authorized
cause requires payment of separation pay. When the termination of
employment is declared illegal, reinstatement and full backwages
are mandated under Article 279. If reinstatement is no longer
possible where the dismissal was unjust, separation pay may be
granted.
Procedurally, (1) if the dismissal is based on a just cause under
Article 282, the employer must give the employee two written
notices and a hearing or opportunity to be heard if requested by
the employee before terminating the employment: a notice
specifying the grounds for which dismissal is sought a hearing or an
opportunity to be heard and after hearing or opportunity to be
heard, a notice of the decision to dismiss; and (2) if the dismissal is
based on authorized causes under Articles 283 and 284, the
employer must give the employee and the Department of Labor
and Employment written notices 30 days prior to the effectivity of
his separation.
From the foregoing rules four possible situations may be derived:
(1) the dismissal is for a just cause under Article 282 of the Labor
Code, for an authorized cause under Article 283, or for health
reasons under Article 284, and due process was observed; (2) the
dismissal is without just or authorized cause but due process was
observed; (3) the dismissal is without just or authorized cause and
there was no due process; and (4) the dismissal is for just or
authorized cause but due process was not observed.
In the first situation, the dismissal is undoubtedly valid and the
employer will not suffer any liability.

PALISOC & SARMIENTO

In the second and third situations where the dismissals are illegal,
Article 279 mandates that the employee is entitled to
reinstatement without loss of seniority rights and other privileges
and full backwages, inclusive of allowances, and other benefits or
their monetary equivalent computed from the time the
compensation was not paid up to the time of actual reinstatement.
In the fourth situation, the dismissal should be upheld. While the
procedural infirmity cannot be cured, it should not invalidate the
dismissal. However, the employer should be held liable for noncompliance with the procedural requirements of due process.
The present case squarely falls under the fourth situation. The
dismissal should be upheld because it was established that the
petitioners abandoned their jobs to work for another company.
Private respondent, however, did not follow the notice requirements
and instead argued that sending notices to the last known
addresses would have been useless because they did not reside
there anymore. Unfortunately for the private respondent, this is not
a valid excuse because the law mandates the twin notice
requirements to the employee's last known address.[21] Thus, it
should be held liable for non-compliance with the procedural
requirements of due process.
A review and re-examination of the relevant legal principles is
appropriate and timely to clarify the various rulings on employment
termination in the light of Serrano v. National Labor Relations
Commission.[22]
Prior to 1989, the rule was that a dismissal or termination is illegal
if the employee was not given any notice. In the 1989 case of
Wenphil Corp. v. National Labor Relations Commission,[23] we
reversed this long-standing rule and held that the dismissed
employee, although not given any notice and hearing, was not
entitled to reinstatement and backwages because the dismissal
was for grave misconduct and insubordination, a just ground for
termination under Article 282. The employee had a violent temper
and caused trouble during office hours, defying superiors who tried
to pacify him. We concluded that reinstating the employee and
awarding backwages "may encourage him to do even worse and
will render a mockery of the rules of discipline that employees are
required to observe."[24] We further held that:
Under the circumstances, the dismissal of the private respondent
for just cause should be maintained. He has no right to return to his
former employment.

237 | P a g e

However, the petitioner must nevertheless be held to account for

failure to extend to private respondent his right to an investigation
before causing his dismissal. The rule is explicit as above
discussed. The dismissal of an employee must be for just or
authorized cause and after due process. Petitioner committed an
infraction of the second requirement. Thus, it must be imposed a
sanction for its failure to give a formal notice and conduct an
investigation as required by law before dismissing petitioner from
employment. Considering the circumstances of this case petitioner
must indemnify the private respondent the amount of P1,000.00.
The measure of this award depends on the facts of each case and
the gravity of the omission committed by the employer.[25]
The rule thus evolved: where the employer had a valid reason to
dismiss an employee but did not follow the due process
requirement, the dismissal may be upheld but the employer will be
penalized to pay an indemnity to the employee. This became
known as the Wenphil or Belated Due Process Rule.
On January 27, 2000, in Serrano, the rule on the extent of the
sanction was changed. We held that the violation by the employer
of the notice requirement in termination for just or authorized
causes was not a denial of due process that will nullify the
termination. However, the dismissal is ineffectual and the employer
must pay full backwages from the time of termination until it is
judicially declared that the dismissal was for a just or authorized
cause.
The rationale for the re-examination of the Wenphil doctrine in
Serrano was the significant number of cases involving dismissals
without requisite notices. We concluded that the imposition of
penalty by way of damages for violation of the notice requirement
was not serving as a deterrent. Hence, we now required payment of
full backwages from the time of dismissal until the time the Court
finds the dismissal was for a just or authorized cause.
Serrano was confronting the practice of employers to "dismiss now
and pay later" by imposing full backwages.
We believe, however, that the ruling in Serrano did not consider the
full meaning of Article 279 of the Labor Code which states:
ART. 279. Security of Tenure. - In cases of regular employment, the
employer shall not terminate the services of an employee except
for a just cause or when authorized by this Title. An employee who
is unjustly dismissed from work shall be entitled to reinstatement

PALISOC & SARMIENTO

without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement.
This means that the termination is illegal only if it is not for any of
the justified or authorized causes provided by law. Payment of
backwages and other benefits, including reinstatement, is justified
only if the employee was unjustly dismissed.
The fact that the Serrano ruling can cause unfairness and injustice
which elicited strong dissent has prompted us to revisit the
doctrine.
To be sure, the Due Process Clause in Article III, Section 1 of the
Constitution embodies a system of rights based on moral principles
so deeply imbedded in the traditions and feelings of our people as
to be deemed fundamental to a civilized society as conceived by
our entire history. Due process is that which comports with the
deepest notions of what is fair and right and just.[26] It is a
constitutional restraint on the legislative as well as on the executive
and judicial powers of the government provided by the Bill of
Rights.
Due process under the Labor Code, like Constitutional due process,
has two aspects: substantive, i.e., the valid and authorized causes
of employment termination under the Labor Code; and procedural,
i.e., the manner of dismissal. Procedural due process requirements
for dismissal are found in the Implementing Rules of P.D. 442, as
amended, otherwise known as the Labor Code of the Philippines in
Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9
and 10.[27] Breaches of these due process requirements violate the
Labor Code. Therefore statutory due process should be
differentiated from failure to comply with constitutional due
process.
Constitutional due process protects the individual from the
government and assures him of his rights in criminal, civil or
administrative proceedings; while statutory due process found in
the Labor Code and Implementing Rules protects employees from
being unjustly terminated without just cause after notice and
hearing.
In Sebuguero v. National Labor Relations Commission,[28] the
dismissal was for a just and valid cause but the employee was not
accorded due process. The dismissal was upheld by the Court but

238 | P a g e

the employer was sanctioned. The sanction should be in the nature

of indemnification or penalty, and depends on the facts of each
case and the gravity of the omission committed by the employer.
In Nath v. National Labor Relations Commission,[29] it was ruled
that even if the employee was not given due process, the failure
did not operate to eradicate the just causes for dismissal. The
dismissal being for just cause, albeit without due process, did not
entitle the employee to reinstatement, backwages, damages and
attorney's fees.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine
Services, Inc. v. National Labor Relations Commission,[30] which
opinion he reiterated in Serrano, stated:
C. Where there is just cause for dismissal but due process has not
been properly observed by an employer, it would not be right to
order either the reinstatement of the dismissed employee or the
payment of backwages to him. In failing, however, to comply with
the procedure prescribed by law in terminating the services of the
employee, the employer must be deemed to have opted or, in any
case, should be made liable, for the payment of separation pay. It
might be pointed out that the notice to be given and the hearing to
be conducted generally constitute the two-part due process
requirement of law to be accorded to the employee by the
employer. Nevertheless, peculiar circumstances might obtain in
certain situations where to undertake the above steps would be no
more than a useless formality and where, accordingly, it would not
be imprudent to apply the res ipsa loquitur rule and award, in lieu
of separation pay, nominal damages to the employee. x x x.[31]
After carefully analyzing the consequences of the divergent
doctrines in the law on employment termination, we believe that in
cases involving dismissals for cause but without observance of the
twin requirements of notice and hearing, the better rule is to
abandon the Serrano doctrine and to follow Wenphil by holding that
the dismissal was for just cause but imposing sanctions on the
employer. Such sanctions, however, must be stiffer than that
imposed in Wenphil. By doing so, this Court would be able to
achieve a fair result by dispensing justice not just to employees,
but to employers as well.
The unfairness of declaring illegal or ineffectual dismissals for valid
or authorized causes but not complying with statutory due process
may have far-reaching consequences.

PALISOC & SARMIENTO

This would encourage frivolous suits, where even the most

notorious violators of company policy are rewarded by invoking due
process. This also creates absurd situations where there is a just or
authorized cause for dismissal but a procedural infirmity invalidates
the termination. Let us take for example a case where the
employee is caught stealing or threatens the lives of his coemployees or has become a criminal, who has fled and cannot be
found, or where serious business losses demand that operations be
ceased in less than a month. Invalidating the dismissal would not
serve public interest. It could also discourage investments that can
generate employment in the local economy.
The constitutional policy to provide full protection to labor is not
meant to be a sword to oppress employers. The commitment of this
Court to the cause of labor does not prevent us from sustaining the
employer when it is in the right, as in this case.[32] Certainly, an
employer should not be compelled to pay employees for work not
actually performed and in fact abandoned.
The employer should not be compelled to continue employing a
person who is admittedly guilty of misfeasance or malfeasance and
whose continued employment is patently inimical to the employer.
The law protecting the rights of the laborer authorizes neither
oppression nor self-destruction of the employer.[33]
It must be stressed that in the present case, the petitioners
committed a grave offense, i.e., abandonment, which, if the
requirements of due process were complied with, would
undoubtedly result in a valid dismissal.
An employee who is clearly guilty of conduct violative of Article 282
should not be protected by the Social Justice Clause of the
Constitution. Social justice, as the term suggests, should be used
only to correct an injustice. As the eminent Justice Jose P. Laurel
observed, social justice must be founded on the recognition of the
necessity of interdependence among diverse units of a society and
of the protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective of the
state of promoting the health, comfort, and quiet of all persons,
and of bringing about "the greatest good to the greatest
number."[34]
This is not to say that the Court was wrong when it ruled the way it
did in Wenphil, Serrano and related cases. Social justice is not
based on rigid formulas set in stone. It has to allow for changing
times and circumstances.

239 | P a g e

Justice Isagani Cruz strongly asserts the need to apply a balanced

approach to labor-management relations and dispense justice with
an even hand in every case:
We have repeatedly stressed that social justice - or any justice for
that matter - is for the deserving, whether he be a millionaire in his
mansion or a pauper in his hovel. It is true that, in case of
reasonable doubt, we are to tilt the balance in favor of the poor to
whom the Constitution fittingly extends its sympathy and
compassion. But never is it justified to give preference to the poor
simply because they are poor, or reject the rich simply because
they are rich, for justice must always be served for the poor and
the rich alike, according to the mandate of the law.[35]
Justice in every case should only be for the deserving party. It
should not be presumed that every case of illegal dismissal would
automatically be decided in favor of labor, as management has
rights that should be fully respected and enforced by this Court. As
interdependent and indispensable partners in nation-building, labor
and management need each other to foster productivity and
economic growth; hence, the need to weigh and balance the rights
and welfare of both the employee and employer.
Where the dismissal is for a just cause, as in the instant case, the
lack of statutory due process should not nullify the dismissal, or
render it illegal, or ineffectual. However, the employer should
indemnify the employee for the violation of his statutory rights, as
ruled in Reta v. National Labor Relations Commission.[36] The
indemnity to be imposed should be stiffer to discourage the
abhorrent practice of "dismiss now, pay later," which we sought to
deter in the Serrano ruling. The sanction should be in the nature of
indemnification or penalty and should depend on the facts of each
case, taking into special consideration the gravity of the due
process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in order that
a right of the plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered by him.
[37]
As enunciated by this Court in Viernes v. National Labor Relations
Commissions,[38] an employer is liable to pay indemnity in the
form of nominal damages to an employee who has been dismissed
if, in effecting such dismissal, the employer fails to comply with the
requirements of due process. The Court, after considering the

PALISOC & SARMIENTO

circumstances therein, fixed the indemnity at P2,590.50, which was

equivalent to the employee's one month salary. This indemnity is
intended not to penalize the employer but to vindicate or recognize
the employee's right to statutory due process which was violated
by the employer.[39]
The violation of the petitioners' right to statutory due process by
the private respondent warrants the payment of indemnity in the
form of nominal damages. The amount of such damages is
addressed to the sound discretion of the court, taking into account
the relevant circumstances.[40] Considering the prevailing
circumstances in the case at bar, we deem it proper to fix it at
P30,000.00. We believe this form of damages would serve to deter
employers from future violations of the statutory due process rights
of employees. At the very least, it provides a vindication or
recognition of this fundamental right granted to the latter under the
Labor Code and its Implementing Rules.
Private respondent claims that the Court of Appeals erred in holding
that it failed to pay petitioners' holiday pay, service incentive leave
pay and 13th month pay.
We are not persuaded.
We affirm the ruling of the appellate court on petitioners' money
claims. Private respondent is liable for petitioners' holiday pay,
service incentive leave pay and 13th month pay without
deductions.
As a general rule, one who pleads payment has the burden of
proving it. Even where the employee must allege non-payment, the
general rule is that the burden rests on the employer to prove
payment, rather than on the employee to prove non-payment. The
reason for the rule is that the pertinent personnel files, payrolls,
records, remittances and other similar documents - which will show
that overtime, differentials, service incentive leave and other
claims of workers have been paid - are not in the possession of the
worker but in the custody and absolute control of the employer.
[41]
In the case at bar, if private respondent indeed paid petitioners'
holiday pay and service incentive leave pay, it could have easily
presented documentary proofs of such monetary benefits to
disprove the claims of the petitioners. But it did not, except with
respect to the 13th month pay wherein it presented cash vouchers
showing payments of the benefit in the years disputed.[42]
Allegations by private respondent that it does not operate during

240 | P a g e

holidays and that it allows its employees 10 days leave with pay,
other than being self-serving, do not constitute proof of payment.
Consequently, it failed to discharge the onus probandi thereby
making it liable for such claims to the petitioners.
Anent the deduction of SSS loan and the value of the shoes from
petitioner Virgilio Agabon's 13th month pay, we find the same to be
unauthorized. The evident intention of Presidential Decree No. 851
is to grant an additional income in the form of the 13th month pay
to employees not already receiving the same[43] so as "to further
protect the level of real wages from the ravages of world-wide
inflation."[44] Clearly, as additional income, the 13th month pay is
included in the definition of wage under Article 97(f) of the Labor
Code, to wit:
(f) "Wage" paid to any employee shall mean the remuneration or
earnings, however designated, capable of being expressed in terms
of money whether fixed or ascertained on a time, task, piece , or
commission basis, or other method of calculating the same, which
is payable by an employer to an employee under a written or
unwritten contract of employment for work done or to be done, or
for services rendered or to be rendered and includes the fair and
reasonable value, as determined by the Secretary of Labor, of
board, lodging, or other facilities customarily furnished by the
employer to the employee..."
from which an employer is prohibited under Article 113[45] of the
same Code from making any deductions without the employee's
knowledge and consent. In the instant case, private respondent
failed to show that the deduction of the SSS loan and the value of
the shoes from petitioner Virgilio Agabon's 13th month pay was
authorized by the latter. The lack of authority to deduct is further
bolstered by the fact that petitioner Virgilio Agabon included the
same as one of his money claims against private respondent.
The Court of Appeals properly reinstated the monetary claims
awarded by the Labor Arbiter ordering the private respondent to
pay each of the petitioners holiday pay for four regular holidays
from 1996 to 1998, in the amount of P6,520.00, service incentive
leave pay for the same period in the amount of P3,255.00 and the
balance of Virgilio Agabon's thirteenth month pay for 1998 in the
amount of P2,150.00.
WHEREFORE, in view of the foregoing, the petition is DENIED. The
decision of the Court of Appeals dated January 23, 2003, in CA-G.R.
SP No. 63017, finding that petitioners' Jenny and Virgilio Agabon
abandoned their work, and ordering private respondent to pay each

PALISOC & SARMIENTO

of the petitioners holiday pay for four regular holidays from 1996 to
1998, in the amount of P6,520.00, service incentive leave pay for
the same period in the amount of P3,255.00 and the balance of
Virgilio Agabon's thirteenth month pay for 1998 in the amount of
P2,150.00 is AFFIRMED with the MODIFICATION that private
respondent Riviera Home Improvements, Inc. is further ORDERED
to pay each of the petitioners the amount of P30,000.00 as nominal
damages for non-compliance with statutory due process.
No costs.
SO ORDERED.
Agabon Doctrine
the rule that if the dismissal is for just cause but statutory due
process was not observed, the dismissal should be upheld. While
the procedural infirmity cannot be cured, it should not invalidate
the dismissal. However, an employer is liable to pay indemnity in
the form of nominal damages to an employee who has been
dismissed if, in effecting such dismissal, the employer fails to
comply with the requirements of due process. This indemnity is
intended not to penalize the employer but to vindicate or recognize
the employee's right to statutory due process which was violated
by the employer. In the subsequent case of JAKA Food Processing v
Pacot, the court clarified the application of the Agabon doctrine and
held that: (1) if the dismissal is based on a just cause under Article
282 but the employer failed to comply with the notice requirement,
the sanction to be imposed upon him should be tempered because
the dismissal process was, in effect, initiated by an act imputable to
the employee; and (2) if the dismissal is based on an authorized
cause under Article 283 but the employer failed to comply with the
notice requirement, the sanction should be stiffer because the
dismissal process was initiated by the exercise of the employer of
his management prerogative.
SEPARATE OPINION
Tinga, J:
I concur in the result, the final disposition of the petition being
correct. There is no denying the importance of the Court's ruling
today, which should be considered as definitive as to the effect of
the failure to render the notice and hearing required under the
Labor Code when an employee is being dismissed for just causes,
as defined under the same law. The Court emphatically reaffirms
the rule that dismissals for just cause are not invalidated due to the
failure of the employer to observe the proper notice and hearing

241 | P a g e

requirements under the Labor Code. At the same time, The

Decision likewise establishes that the Civil Code provisions on
damages serve as the proper framework for the appropriate relief
to the employee dismissed for just cause if the notice-hearing
requirement is not met. Serrano v. NLRC,[1] insofar as it is
controlling in dismissals for unauthorized causes, is no longer the
controlling precedent. Any and all previous rulings and statements
of the Court inconsistent with these determinations are now
deemed inoperative.
My views on the questions raised in this petition are
comprehensive, if I may so in all modesty. I offer this opinion to
discuss the reasoning behind my conclusions, pertaining as they do
to questions of fundamental importance.
Prologue
The factual backdrop of the present Petition for Review is not novel.
Petitioners claim that they were illegally dismissed by the
respondents, who allege in turn that petitioners had actually
abandoned their employment. There is little difficulty in upholding
the findings of the NRLC and the Court of Appeals that petitioners
are guilty of abandonment, one of the just causes for termination
under the Labor Code. Yet, the records also show that the employer
was remiss in not giving the notice required by the Labor Code;
hence, the resultant controversy as to the legal effect of such
failure vis-?-vis the warranted dismissal.
Ostensibly, the matter has been settled by our decision in
Serrano[2], wherein the Court ruled that the failure to properly
observe the notice requirement did not render the dismissal,
whether for just or authorized causes, null and void, for such
violation was not a denial of the constitutional right to due process,
and that the measure of appropriate damages in such cases ought
to be the amount of wages the employee should have received
were it not for the termination of his employment without prior
notice.[3] Still, the Court has, for good reason, opted to reexamine
the so-called Serrano doctrine through the present petition
Antecedent Facts
Respondent Riviera Home Improvements, Inc (Riviera Home) is
engaged in the manufacture and installation of gypsum board and
cornice. In January of 1992, the Agabons were hired in January of
1992 as cornice installers by Riviera Home. According to their
personnel file with Riviera Home, the Agabon given address was
3RDS Tailoring, E. Rodriguez Ave., Moonwalk Subdivision, P-II

PALISOC & SARMIENTO

Paranaque

City,

Metro

Manila.[4]

It is not disputed that sometime around February 1999, the

Agabons stopped rendering services for Riviera Home. The Agabons
allege that beginning on 23 February 1999, they stopped receiving
assignments from Riviera Home.[5] When they demanded an
explanation, the manager of Riviera Homes, Marivic Ventura,
informed them that they would be hired again, but on a "pakyaw"
(piece-work) basis. When the Agabons spurned this proposal,
Riviera Homes refused to continue their employment under the
original terms and agreement.[6] Taking affront, the Agabons filed a
complaint for illegal dismissal with the National Labor Relations
Commission
("NLRC").
Riviera Homes adverts to a different version of events leading to
the filing of the complaint for illegal dismissal. It alleged that in the
early quarter of 1999, the Agabons stopped reporting for work with
Riviera. Two separate letters dated 10 March 1999, were sent to the
Agabons at the address indicated in their personnel file. In these
notices, the Agabons were directed to report for work immediately.
[7] However, these notices were returned unserved with the
notation "RTS Moved." Then, in June of 1999, Virgilio Agabon
informed Riviera Homes by telephone that he and Jenny Agabon
were ready to return to work for Riviera Homes, on the condition
that their wages be first adjusted. On 18 June 1999, the Agabons
went to Riviera Homes, and in a meeting with management,
requested a wage increase of up to Two Hundred Eighty Pesos
(P280.00) a day. When no affirmative response was offered by
Riviera Homes, the Agabons initiated the complaint before the
NLRC.[8]
In their Position Paper, the Agabons likewise alleged that they were
required to work even on holidays and rest days, but were never
paid the legal holiday pay or the premium pay for holiday or rest
day. They also asserted that they were denied Service Incentive
Leave pay, and that Virgilio Agabon was not given his thirteenth
(13th)
month
pay
for
the
year
1998.[9]
After due deliberation, Labor Arbiter Daisy G. Cauton-Barcelona
rendered a Decision dated 28 December 1999, finding the
termination of the Agabons illegal, and ordering Riviera Homes to
pay backwages in the sum of Fifty Six Thousand Two Hundred Thirty
One Pesos and Ninety Three Centavos (P56,231.93) each. The
Labor Arbiter likewise ordered, in lieu of reinstatement, the
payment of separation pay of one (1) month pay for every year of
service from date of hiring up to 29 November 1999, as well as the
payment of holiday pay, service incentive leave pay, and premium

242 | P a g e

pay for holiday

differential

and restday,
to

plus thirteenth
Virgilio

(13th) month
Agabon.[10]

In so ruling, the Labor Arbiter declared that Riviera Homes was

unable to satisfactorily refute the Agabons' claim that they were no
longer given work to do after 23 February 1999 and that their
rehiring was only on "pakyaw" basis. The Labor Arbiter also held
that Riviera Homes failed to comply with the notice requirement,
noting that Riviera Homes well knew of the change of address of
the Agabons, considering that the identification cards it issued
stated a different address from that on the personnel file.[11] The
Labor Arbiter asserted the principle that in all termination cases,
strict compliance by the employer with the demands of procedural
and substantive due process is a condition sine qua non for the
same to be declared valid.[12]
On appeal, the NLRC Second Division set aside the Labor Arbiter's
Decision and ordered the dismissal of the complaint for lack of
merit.[13] The NLRC held that the Agabons were not able to refute
the assertion that for the payroll period ending on 15 February
1999, Virgilio and Jenny Agabon worked for only two and one-half
(2?) and three (3) days, respectively. It disputed the earlier
finding that Riviera Homes had known of the change in address,
noting that the address indicated in the identification cards was not
the Agabons, but that of the persons who should be notified in case
of emergency concerning the employee.[14] Thus, proper service of
the notice was deemed to have been accomplished. Further, the
notices evinced good reason to believe that the Agabons had not
been dismissed, but had instead abandoned their jobs by refusing
to report for work.
In support of its conclusion that the Agabons had abandoned their
work, the NLRC also observed that the Agabons did not seek
reinstatement, but only separation pay. While the choice of relief
was premised by the Agabons on their purported strained relations
with Riviera Homes, the NLRC pointed out that such claim was
amply belied by the fact that the Agabons had actually sought a
conference with Riviera Homes in June of 1999. The NLRC likewise
found that the failure of the Labor Arbiter to justify the award of
extraneous money claims, such as holiday and service incentive
leave pay, confirmed that there was no proof to justify such claims.
A Petition for Certiorari was promptly filed with the Court of Appeals
by the Agabons, imputing grave abuse of discretion on the part of
the NLRC in dismissing their complaint for illegal dismissal. In a
Decision[15] dated 23 January 2003, the Court of Appeals affirmed
the finding that the Agabons had abandoned their employment. It

PALISOC & SARMIENTO

noted that the two elements constituting abandonment had been

established, to wit: the failure to report for work or absence without
valid justifiable reason, and; a clear intention to sever the
employer-employee relationship. The intent to sever the employeremployee relationship was buttressed by the Agabon's choice to
seek not reinstatement, but separation pay. The Court of Appeals
likewise found that the service of the notices were valid, as the
Agabons did not notify Riviera Homes of their change of address,
and thus the failure to return to work despite notice amounted to
abandonment of work.
However, the Court of Appeals reversed the NLRC as regards the
denial of the claims for holiday pay, service incentive leave pay,
and the balance of Virgilio Agabon's thirteenth (13th) month pay. It
ruled that the failure to adduce proof in support thereof was not
fatal and that the burden of proving that such benefits had already
been paid rested on Riviera Homes.[16] Given that Riviera Homes
failed to present proof of payment to the Agabons of their holiday
pay and service incentive leave pay for the years 1996, 1997 and
1998, the Court of Appeals chose to believe that such benefits had
not actually been received by the employees. It also ruled that the
apparent deductions made by Riviera Homes on the thirteenth
(13th) month pay of Virgilio Agabon violated Section 10 of the Rules
and Regulations Implementing Presidential Decree No. 851.[17]
Accordingly, Riviera Homes was ordered to pay the Agabons
holiday for four (4) regular holidays in 1996, 1997 and 1998, as well
as their service incentive leave pay for said years, and the balance
of Virgilio Agabon's thirteenth (13th) month pay for 1998 in the
amount of Two Thousand One Hundred Fifty Pesos (P2,150.00).[18]
In their Petition for Review, the Agabons claim that they had been
illegally dismissed, reasserting their version of events, thus: (1)
that they had not been given new assignments since 23 February
1999; (2) that they were told that they would only be re-hired on a
"pakyaw" basis, and; (3) that Riviera Homes had knowingly sent the
notices to their old address despite its knowledge of their change of
address as indicated in the identification cards.[19] Further, the
Agabons note that only one notice was sent to each of them, in
violation of the rule that the employer must furnish two written
notices before termination - the first to apprise the employee of the
cause for which dismissal is sought, and the second to notify the
employee of the decision of dismissal.[20] The Agabons likewise
maintain that they did not seek reinstatement owing to the strained
relations between them and Riviera Homes.
The Agabons present to this Court only one issue, i.e.: whether or
not they were illegally dismissed from their employment.[21] There

243 | P a g e

are several dimensions though to this issue which warrant full

consideration.
The Abandonment Dimension
Review of Factual Finding of Abandonment
As the Decision points out, abandonment is characterized by the
failure to report for work or absence without valid or justifiable
reason, and a clear intention to sever the employer-employee
relationship. The question of whether or not an employee has
abandoned employment is essentially a factual issue.[22] The NLRC
and the Court of Appeals, both appropriate triers of fact, concluded
that the Agabons had actually abandoned their employment, thus
there is little need for deep inquiry into the correctness of this
factual finding. There is no doubt that the Agabons stopped
reporting for work sometime in February of 1999. And there is no
evidence to support their assertion that such absence was due to
the deliberate failure of Riviera Homes to give them work. There is
also the fact, as noted by the NLRC and the Court of Appeals, that
the Agabons did not pray for reinstatement, but only for
separation pay and money claims.[23] This failure indicates their
disinterest in maintaining the employer-employee relationship and
their unabated avowed intent to sever it. Their excuse that strained
relations between them and Riviera Homes rendered reinstatement
no longer feasible was hardly given credence by the NLRC and the
Court of Appeals.[24]
The contrary conclusion arrived at by the Labor Arbiter as regards
abandonment is of little bearing to the case. All that the Labor
Arbiter said on that point was that Riviera Homes was not able to
refute the Agabons' claim that they were terminated on 23
February 1999.[25] The Labor Arbiter did not explain why or how
such finding was reachhy or how such finding was reachhe Agabons
was more credible than that of Riviera Homes'. Being bereft of
reasoning, the conclusion deserves scant consideration.
Compliance with Notice Requirement
At the same time, both the NLRC and the Court of Appeals failed to
consider the apparent fact that the rules governing notice of
termination were not complied with by Riviera Homes. Section 2,
Book V, Rule XXIII of the Omnibus Rules Implementing the Labor
Code (Implementing Rules) specifically provides that for
termination of employment based on just causes as defined in
Article 282, there must be: (1) written notice served on the

PALISOC & SARMIENTO

employee specifying the grounds for termination and giving

employee reasonable opportunity to explain his/her side; (2) a
hearing or conference wherein the employee, with the assistance of
counsel if so desired, is given opportunity to respond to the charge,
present his evidence or rebut evidence presented against him/her;
and (3) written notice of termination served on the employee
indicating that upon due consideration of all the circumstances,
grounds have been established to justify termination.
At the same time, Section 2, Book V, Rule XXIII of the Implementing
Rules does not require strict compliance with the above procedure,
but only that the same be "substantially observed."
Riviera Homes maintains that the letters it sent on 10 March 1999
to the Agabons sufficiently complied with the notice rule. These
identically worded letters noted that the Agabons had stopped
working without permission that they failed to return for work
despite having been repeatedly told to report to the office and
resume their employment.[26] The letters ended with an invitation
to the Agabons to report back to the office and return to work.[27]
The apparent purpose of these letters was to advise the Agabons
that they were welcome to return back to work, and not to notify
them of the grounds of termination. Still, considering that only
substantial compliance with the notice requirement is required, I
am prepared to say that the letters sufficiently conform to the first
notice required under the Implementing Rules. The purpose of the
first notice is to duly inform the employee that a particular
transgression is being considered against him or her, and that an
opportunity is being offered for him or her to respond to the
charges. The letters served the purpose of informing the Agabons
of the pending matters beclouding their employment, and
extending them the opportunity to clear the air.
Contrary to the Agabons' claim, the letter-notice was correctly sent
to the employee's last known address, in compliance with the
Implementing Rules. There is no dispute that these letters were not
actually received by the Agabons, as they had apparently moved
out of the address indicated therein. Still, the letters were sent to
what Riviera Homes knew to be the Agabons' last known address,
as indicated in their personnel file. The Agabons insist that Riviera
Homes had known of the change of address, offering as proof their
company IDs which purportedly print out their correct new address.
Yet, as pointed out by the NLRC and the Court of Appeals, the
addresses indicated in the IDs are not the Agabons, but that of the
person who is to be notified in case on emergency involve either or
both of the Agabons.

244 | P a g e

The actual violation of the notice requirement by Riviera Homes lies

in its failure to serve on the Agabons the second notice which
should inform them of termination. As the Decision notes, Riviera
Homes' argument that sending the second notice was useless due
to the change of address is inutile, since the Implementing Rules
plainly require that the notice of termination should be served at
the employee's last known address.
The importance of sending the notice of termination should not be
trivialized. The termination letter serves as indubitable proof of loss
of employment, and its receipt compels the employee to evaluate
his or her next options. Without such notice, the employee may be
left uncertain of his fate; thus, its service is mandated by the
Implementing Rules. Non-compliance with the notice rule, as
evident in this case, contravenes the Implementing Rules. But does
the violation serve to invalidate the Agabons' dismissal for just
cause?
The So-Called Constitutional Law Dimension
Justices Puno and Panganiban opine that the Agabons should be
reinstated as a consequence of the violation of the notice
requirement. I respectfully disagree, for the reasons expounded
below.
Constitutional Considerations
Of Due Process and the Notice-Hearing
Requirement in Labor Termination Cases
Justice Puno proposes that the failure to render due notice and
hearing prior to dismissal for just cause constitutes a violation of
the constitutional right to due process. This view, as acknowledged
by Justice Puno himself, runs contrary to the Court's
pronouncement in Serrano v. NLRC[28] that the absence of due
notice and hearing prior to dismissal, if for just cause, violates
statutory due process.
The ponencia of Justice Vicente V. Mendoza in Serrano provides this
cogent overview of the history of the doctrine:
Indeed, to contend that the notice requirement in the Labor Code is
an aspect of due process is to overlook the fact that Art. 283 had its
origin in Art. 302 of the Spanish Code of Commerce of 1882 which
gave either party to the employer-employee relationship the right
to terminate their relationship by giving notice to the other one
month in advance. In lieu of notice, an employee could be laid off
by paying him a mesada equivalent to his salary for one month.

PALISOC & SARMIENTO

This provision was repealed by Art. 2270 of the Civil Code, which
took effect on August 30, 1950. But on June 12, 1954, R.A. No.
1052, otherwise known as the Termination Pay Law, was enacted
reviving the mesada. On June 21, 1957, the law was amended by
R.A. No. 1787 providing for the giving of advance notice for every
year of service.[29]
Under Section 1 of the Termination Pay Law, an employer could
dismiss an employee without just cause by serving written notice
on the employee at least one month in advance or one-half month
for every year of service of the employee, whichever was longer.
[30] Failure to serve such written notice entitled the employee to
compensation equivalent to his salaries or wages corresponding to
the required period of notice from the date of termination of his
employment.
However, there was no similar written notice requirement under the
Termination Pay Law if the dismissal of the employee was for just
cause. The Court, speaking through Justice JBL Reyes, ruled in Phil.
Refining
Co.
v.
Garcia:[31]
[Republic] Act 1052, as amended by Republic Act 1787, impliedly
recognizes the right of the employer to dismiss his employees
(hired without definite period) whether for just case, as therein
defined or enumerated, or without it. If there be just cause, the
employer is not required to serve any notice of discharge nor to
disburse
termination
pay
to
the
employee.
xxx[32]
Clearly, the Court, prior to the enactment of the Labor Code, was illreceptive to the notion that termination for just cause without
notice or hearing violated the constitutional right to due process.
Nonetheless, the Court recognized an award of damages as the
appropriate remedy. In Galsim v. PNB,[33] the Court held:
Of course, the employer's prerogative to dismiss employees hired
without a definite period may be with or without cause. But if the
manner in which such right is exercised is abusive, the employer
stands to answer to the dismissed employee for damages.[34]
The Termination Pay Law was among the repealed laws with the
enactment of the Labor Code in 1974. Significantly, the Labor Code,
in its inception, did not require notice or hearing before an
employer could terminate an employee for just cause. As Justice
Mendoza explained:
Where the termination of employment was for a just cause, no
notice was required to be given to the employee. It was only on
September 4, 1981 that notice was required to be given even

245 | P a g e

where the dismissal or termination of an employee was for cause.

This was made in the rules issued by the then Minister of Labor and
Employment to implement B.P. Blg. 130 which amended the Labor
Code. And it was still much later when the notice requirement was
embodied in the law with the amendment of Art. 277(b) by R.A. No.
6715 on March 2, 1989.[35]
It cannot be denied though that the thinking that absence of notice
or hearing prior to termination constituted a constitutional violation
has gained a jurisprudential foothold with the Court. Justice Puno, in
his Dissenting Opinion, cites several cases in support of this
theory, beginning with Batangas Laguna Tayabas Bus Co. v. Court
of Appeals[36] wherein we held that "the failure of petitioner to
give the private respondent the benefit of a hearing before he was
dismissed constitutes an infringement on his constitutional right to
due
process
of
law.[37]

opportunity to determine whether economic causes do exist

justifying the termination of his employment.
xxx
The third reason why the notice requirement under Art. 283 can not
be considered a requirement of the Due Process Clause is that the
employer cannot really be expected to be entirely an impartial
judge of his own cause. This is also the case in termination of
employment for a just cause under Art. 282 (i.e., serious
misconduct or willful disobedience by the employee of the lawful
orders of the employer, gross and habitual neglect of duties, fraud
or willful breach of trust of the employer, commission of crime
against the employer or the latter's immediate family or duly
authorized representatives, or other analogous cases).[38]

xxx There are three reasons why, on the other hand, violation by
the employer of the notice requirement cannot be considered a
denial of due process resulting in the nullity of the employee's
dismissal or layoff.

The Court in the landmark case of People v. Marti[39] clarified the

proper dimensions of the Bill of Rights.
That the Bill of Rights embodied in the Constitution is not meant to
be invoked against acts of private individuals finds support in the
deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be
subject to protection. But protection against whom? Commissioner
Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

The first is that the Due Process Clause of the Constitution is a

limitation on governmental powers. It does not apply to the
exercise of private power, such as the termination of employment
under the Labor Code. This is plain from the text of Art. III, ?
1 of the Constitution, viz.: "No person shall be deprived of
life, liberty, or property without due process of law. . . ." The reason
is simple: Only the State has authority to take the life, liberty, or
property of the individual. The purpose of the Due Process Clause is
to ensure that the exercise of this power is consistent with what are
considered civilized methods.

"First, the general reflections. The protection of fundamental

liberties in the essence of constitutional democracy. Protection
against whom? Protection against the state. The Bill of Rights
governs the relationship between the individual and the state. Its
concern is not the relation between individuals, between a private
individual and other individuals. What the Bill of Rights does is to
declare some forbidden zones in the private sphere inaccessible to
any power holder." (Sponsorship Speech of Commissioner Bernas;
Record of the Constitutional Commission, Vol. 1, p. 674; July
17,1986; Italics supplied)[40]

The second reason is that notice and hearing are required under
the Due Process Clause before the power of organized society are
brought to bear upon the individual. This is obviously not the case
of termination of employment under Art. 283. Here the employee is
not faced with an aspect of the adversary system. The purpose for
requiring a 30-day written notice before an employee is laid off is
not to afford him an opportunity to be heard on any charge against
him, for there is none. The purpose rather is to give him time to
prepare for the eventual loss of his job and the DOLE an

I do not doubt that requiring notice and hearing prior to termination

for just cause is an admirable sentiment borne out of basic equity
and fairness. Still, it is not a constitutional requirement that can
impose itself on the relations of private persons and entities.
Simply put, the Bill of Rights affords protection against possible
State oppression against its citizens, but not against an unjust or
repressive conduct by a private party towards another.

Still, this theory has been refuted, pellucidly and effectively to my

mind, by Justice Mendoza's disquisition in Serrano, thus:

PALISOC & SARMIENTO

Justice Puno characterizes the notion that constitutional due

process limits government action alone as "pass?," and adverts to

246 | P a g e

nouvelle vague theories which assert that private conduct may be

restrained by constitutional due process. His dissent alludes to the
American experience making references to the post-Civil War/preWorld War II era when the US Supreme Court seemed overly
solicitous to the rights of big business over those of the workers.
Theories, no matter how entrancing, remain theoretical unless
adopted by legislation, or more controversially, by judicial opinion.
There were a few decisions of the US Supreme Court that,
ostensibly, imposed on private persons the values of the
constitutional guarantees. However, in deciding the cases, the
American High Court found it necessary to link the actors to
adequate elements of the "State" since the Fourteenth Amendment
plainly begins with the words "No State shall..."[41]
More crucially to the American experience, it had become
necessary to pass legislation in order to compel private persons to
observe constitutional values. While the equal protection clause
was deemed sufficient by the Warren Court to bar racial
segregation in public facilities, it necessitated enactment of the
Civil Rights Acts of 1964 to prohibit segregation as enforced by
private persons within their property. In this jurisdiction, I have trust
in the statutory regime that governs the correction of private
wrongs. There are thousands of statutes, some penal or regulatory
in nature, that are the source of actionable claims against private
persons. There is even no stopping the State, through the
legislative cauldron, from compelling private individuals, under pain
of legal sanction, into observing the norms ordained in the Bill of
Rights.
Justice Panganiban's Separate Opinion asserts that corporate
behemoths and even individuals may now be sources of abuses
and threats to human rights and liberties.[42] The concern is not
unfounded, but appropriate remedies exist within our statutes, and
so resort to the constitutional trump card is not necessary. Even if
we were to engage the premise, the proper juristic exercise should
be to examine whether an employer has taken the attributes of the
State so that it could be compelled by the Constitution to observe
the proscriptions of the Bill of Rights. But the strained analogy
simply does not square since the attributes of an employer are
starkly incongruous with those of the State. Employers plainly do
not possess the awesome powers and the tremendous resources
which the State has at its command.
The differences between the State and employers are not merely
literal, but extend to their very essences. Unlike the State, the
raison d'etre of employers in business is to accumulate profits.

PALISOC & SARMIENTO

Perhaps the State and the employer are similarly capacitated to

inflict injury or discomfort on persons under their control, but the
same power is also possessed by a school principal, hospital
administrator, or a religious leader, among many others. Indeed,
the scope and reach of authority of an employer pales in
comparison with that of the State. There is no basis to conclude
that an employer, or even the employer class, may be deemed a de
facto state and on that premise, compelled to observe the Bill of
Rights. There is simply no nexus in their functions, distaff as they
are, that renders it necessary to accord the same jurisprudential
treatment.
It may be so, as alluded in the dissent of Justice Puno, that a
conservative court system overly solicitous to the concerns of
business may consciously gut away at rights or privileges owing to
the labor sector. This certainly happened before in the United
States in the early part of the twentieth century, when the
progressive labor legislation such as that enacted during President
Roosevelt's New Deal regime - most of them addressing problems
of labor - were struck down by an arch-conservative Court.[43] The
preferred rationale then was to enshrine within the constitutional
order business prerogatives, rendering them superior to the
express legislative intent. Curiously, following its judicial philosophy
at the time the U. S. Supreme Court made due process guarantee
towards employers prevail over the police power to defeat the
cause of labor.[44]
Of course, this Court should not be insensate to the means and
methods by which the entrenched powerful class may maneuver
the socio-political system to ensure self-preservation. However, the
remedy to rightward judicial bias is not leftward judicial bias. The
more proper judicial attitude is to give due respect to legislative
prerogatives, regardless of the ideological sauce they are dipped in.
While the Bill of Rights maintains a position of primacy in the
constitutional hierarchy,[45] it has scope and limitations that must
be respected and asserted by the Court, even though they may at
times serve somewhat bitter ends. The dissenting opinions are
palpably distressed at the effect of the Decision, which will
undoubtedly provoke those reflexively sympathetic to the labor
class. But haphazard legal theory cannot be used to justify the
obverse result. The adoption of the dissenting views would give rise
to all sorts of absurd constitutional claims. An excommunicated
Catholic might demand his/her reinstatement into the good graces
of the Church and into communion on the ground that
excommunication was violative of the constitutional right to due
process. A celebrity contracted to endorse Pepsi Cola might sue in

247 | P a g e

court to void a stipulation that prevents him/her from singing the

praises of Coca Cola once in a while, on the ground that such
stipulation violates the constitutional right to free speech. An
employee might sue to prevent the employer from reading
outgoing e-mail sent through the company server using the
company e-mail address, on the ground that the constitutional right
to privacy of communication would be breached.

The provisions of the 1987 Constitution affirm the primacy of labor

and advocate a multi-faceted state policy that affords, among
others, full protection to labor. Section 18, Article II thereof
provides:

The above concerns do not in anyway serve to trivialize the

interests of labor. But we must avoid overarching declarations in
order to justify an end result beneficial to labor. I dread the
doctrinal acceptance of the notion that the Bill of Rights, on its own,
affords protection and sanctuary not just from the acts of State but
also from the conduct of private persons. Natural and juridical
persons would hesitate to interact for fear that a misstep could lead
to their being charged in court as a constitutional violator. Private
institutions that thrive on their exclusivity, such as churches or
cliquish groups, could be forced to renege on their traditional
tenets, including vows of secrecy and the like, if deemed by the
Court as inconsistent with the Bill of Rights. Indeed, that
fundamental right of all private persons to be let alone would be
forever diminished because of a questionable notion that
contravenes with centuries of political thought.

Further, Section 3, Article XIII states:

It is not difficult to be enraptured by novel legal ideas. Their

characterization is susceptible to the same marketing traps that
hook consumers to new products. With the help of unique
wrapping, a catchy label, and testimonials from professed experts
from exotic lands, a malodorous idea may gain wide acceptance,
even among those self-possessed with their own heightened senses
of perception. Yet before we join the mad rush in order to proclaim
a theory as "brilliant," a rigorous test must first be employed to
determine whether it complements or contradicts our own system
of laws and juristic thought. Without such analysis, we run the risk
of abnegating the doctrines we have fostered for decades and the
protections they may have implanted into our way of life.
Should the Court adopt the view that the Bill of Rights may be
invoked to invalidate actions by private entities against private
individuals, the Court would open the floodgates to, and the docket
would be swamped with, litigations of the scurrilous sort. Just as
patriotism is the last refuge of scoundrels, the broad constitutional
claim is the final resort of the desperate litigant.
Constitutional Protection of Labor

PALISOC & SARMIENTO

The State affirms labor as a primary social economic force. It shall

protect the rights of workers and promote their welfare.

The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and
equal employment opportunities for all.
It shall guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. They
shall be entitled to security to tenure, humane conditions of work,
and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be
provided by law.
The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation, and
shall enforce their mutual compliance therewith to foster industrial
peace.
The State shall regulate the relations between workers and
employers, recognizing the right of labor to its just share in the
fruits of production and the right of enterprises to reasonable
returns on investments, and to expansion and growth.
The constitutional enshrinement of the guarantee of full protection
of labor is not novel to the 1987 Constitution. Section 6, Article XIV
of the 1935 Constitution reads:
The State shall afford protection to labor, especially to working
women, and minors, and shall regulate the relations between the
landowner and tenant, and between labor and capital in industry
and in agriculture. The State may provide for compulsory
arbitratioN.
Similarly, among the principles and state policies declared in the
1973 Constitution, is that provided in Section 9, Article II thereof:

248 | P a g e

The State shall afford full protection to labor, promote full

employment and equality in employment, ensure equal work
opportunities regardless of sex, race or creed, and regulate the
relations between workers and employers. The State shall assure
the rights of workers to self-organization, collective bargaining,
security of tenure, and just and humane conditions of work. The
State may provide for compulsory arbitration.
On the other hand, prior to the 1973 Constitution, the right to
security of tenure could only be found in legislative enactments and
their respective implementing rules and regulations. It was only in
the 1973 Constitution that security of tenure was elevated as a
constitutional right. The development of the concept of security of
tenure as a constitutionally recognized right was discussed by this
Court in BPI Credit Corporation v. NLRC,[46] to wit:
The enthronement of the worker's right to security or tenure in our
fundamental law was not achieved overnight. For all its liberality
towards labor, our 1935 Constitution did not elevate the right as a
constitutional right. For a long time, the worker's security of tenure
had only the protective mantle of statutes and their interpretative
rules and regulations. It was as uncertain protection that
sometimes yielded to the political permutations of the times. It took
labor nearly four decades of sweat and tears to persuade our
people thru their leaders, to exalt the worker's right to security of
tenure as a sacrosanct constitutional right. It was Article II, section
2 [9] of our 1973 Constitution that declared as a policy that the
State shall assure the right of worker's to security tenure. The 1987
Constitution is even more solicitous of the welfare of labor. Section
3 of its Article XIII mandates that the State shall afford full
protection to labor and declares that all workers shall be entitled to
security of tenure. Among the enunciated State policies are
the promotion of social justice and a just and dynamic social order.
In contrast, the prerogative of management to dismiss a worker, as
an aspect of property right, has never been endowed with a
constitutional status.
The unequivocal constitutional declaration that all workers shall be
entitled to security of tenure spurred our lawmakers to strengthen
the protective walls around this hard earned right. The right was
protected from undue infringement both by our substantive and
procedural laws. Thus, the causes for dismissing employees were
more defined and restricted; on the other hand, the procedure of
termination was also more clearly delineated. These substantive
and procedural laws must be strictly complied with before a worker
can be dismissed from his employment.[47]

PALISOC & SARMIENTO

It is quite apparent that the constitutional protection of labor was

entrenched more than eight decades ago, yet such did not prevent
this Court in the past from affirming dismissals for just cause
without valid notice. Nor was there any pretense made that this
constitutional maxim afforded a laborer a positive right against
dismissal for just cause on the ground of lack of valid prior notice.
As demonstrated earlier, it was only after the enactment of the
Labor Code that the doctrine relied upon by the dissenting opinions
became en vogue. This point highlights my position that the
violation of the notice requirement has statutory moorings, not
constitutional.
It should be also noted that the 1987 Constitution also recognizes
the principle of shared responsibility between workers and
employers, and the right of enterprise to reasonable returns,
expansion, and growth. Whatever perceived imbalance there might
have been under previous incarnations of the provision have been
obviated by Section 3, Article XIII.
In the case of Manila Prince Hotel v. GSIS,[48] we affirmed the
presumption that all constitutional provisions are self-executing. We
reasoned that to declare otherwise would result in the pernicious
situation wherein by mere inaction and disregard by the legislature,
constitutional mandates would be rendered ineffectual. Thus, we
held:
As against constitutions of the past, modern constitutions have
been generally ed upon a different principle and have often
become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has
evolved into one more like that of a legislative body. Hence, unless
it is expressly provided that a legislative act is necessary to enforce
a constitutional mandate, the presumption now is that all provisions
of the constitution are self-executing. If the constitutional provisions
are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify
the mandate of the fundamental law. This can be cataclysmic. That
is why the prevailing view is, as it has always been, that . . . in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing. . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the

249 | P a g e

lawmaking body, which could make them entirely meaningless by

simply refusing to pass the needed implementing statute.[49]
In further discussing self-executing provisions, this Court stated
that:
In self-executing constitutional provisions, the legislature may still
enact legislation to facilitate the exercise of powers directly granted
by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a
convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a
self-executing constitutional provision does not render such a
provision ineffective in the absence of such legislation. The
omission from a constitution of any express provision for a remedy
for enforcing a right or liability is not necessarily an indication that
it was not intended to be self-executing. The rule is that a selfexecuting provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in
harmony with the constitution, further the exercise of constitutional
right and make it more available. Subsequent legislation however
does not necessarily mean that the subject constitutional provision
is not, by itself, fully enforceable.[50]
Thus, the constitutional mandates of protection to labor and
security of tenure may be deemed as self-executing in the sense
that these are automatically acknowledged and observed without
need for any enabling legislation. However, to declare that the
constitutional provisions are enough to guarantee the full exercise
of the rights embodied therein, and the realization of ideals therein
expressed, would be impractical, if not unrealistic. The espousal of
such view presents the dangerous tendency of being overbroad and
exaggerated. The guarantees of "full protection to labor" and
"security of tenure", when examined in isolation, are facially
unqualified, and the broadest interpretation possible suggests a
blanket shield in favor of labor against any form of removal
regardless of circumstance. This interpretation implies an
unimpeachable right to continued employment-a utopian notion,
doubtless-but still hardly within the contemplation of the framers.
Subsequent legislation is still needed to define the parameters of
these guaranteed rights to ensure the protection and promotion,
not only the rights of the labor sector, but of the employers' as well.
Without specific and pertinent legislation, judicial bodies will be at a
loss, formulating their own conclusion to approximate at least the
aims of the Constitution.

PALISOC & SARMIENTO

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be

a source of a positive enforceable right to stave off the dismissal of
an employee for just cause owing to the failure to serve proper
notice or hearing. As manifested by several framers of the 1987
Constitution, the provisions on social justice require legislative
enactments for their enforceability. This is reflected in the record of
debates on the social justice provisions of the Constitution:
MS. [FELICITAS S.] AQUINO: We appreciate the concern of the
Commissioner. But this Committee [on Social Justice] has actually
become the forum already of a lot of specific grievances and
specific demands, such that understandably, we may have been, at
one time or another, dangerously treading into the functions of
legislation. Our only plea to the Commission is to focus our
perspective on the matter of social justice and its rightful place in
the Constitution. What we envision here is a mandate specific
enough that would give impetus for statutory implementation. We
would caution ourselves in terms of the judicious exercise of selfcensorship against treading into the functions of legislation.
(emphasis supplied)[51]
xxx
[FLORENZ D.] REGALADO: I notice that the 1935 Constitution had
only one section on social justice; the same is true with the 1973
Constitution. But they seem to have stood us in good stead; and I
am a little surprised why, despite that attempt at self-censorship,
there are certain provisions here which are properly for legislation.
[52]
xxx
BISHOP [TEODORO S.] BACANI: [I] think the distinction that was
given during the presentation of the provisions on the Bill of Rights
by Commissioner Bernas is very apropos here. He spoke of selfexecuting rights which belong properly to the Bill of Rights, and
then he spoke of a new body of rights which are more of claims and
that these have come about largely through the works of social
philosophers and then the teaching of the Popes. They focus on the
common good and hence, it is not as easy to pinpoint precisely
these rights nor the situs of the rights. And yet, they exist in
relation to the common good.[53]
xxx
MS. [MINDA LUZ M.] QUESADA: I think the nitty-gritty of this kind of
collaboration will be left to legislation but the important thing now

250 | P a g e

is the conservation, utilization or maximization of the very limited

resources. xxx
[RICARDO J.] ROMULO: The other problem is that, by and large,
government services are inefficient. So, this is a problem all by
itself. On Section 19, where the report says that people's
organizations as a principal means of empowering the people to
pursue and protect through peaceful means..., I do not suppose
that the Committee would like to either preempt or exclude the
legislature, because the concept of a representative and
democratic system really is that the legislature is normally the
principal
means.
[EDMUNDO G.] GARCIA: That is correct. In fact, people cannot even
dream of influencing the composition or the membership of the
legislature, if they do not get organized. It is, in fact, a recognition
of the principle that unless a citizenry is organized and mobilized to
pursue its ends peacefully, then it cannot really participate
effectively.[54]
There is no pretense on the part of the framers that the provisions
on Social Justice, particularly Section 3 of Article XIII, are selfexecutory. Still, considering the rule that provisions should be
deemed self-executing if enforceable without further legislative
action, an examination of Section 3 of Article XIII is warranted to
determine whether it is complete in itself as a definitive law, or if it
needs future legislation for completion and enforcement.[55]
Particularly, we should inquire whether or not the provision voids
the dismissal of a laborer for just cause if no valid notice or hearing
is attendant.

and prescribes the standards for the enforcement of such rights in

concrete terms. While not infallible, the measures provided therein
tend to ensure the achievement of the constitutional aims.
The necessity for laws concretizing the constitutional principles on
the protection of labor is evident in the reliance placed upon such
laws by the Court in resolving the issue of the validity of a worker's
dismissal. In cases where that was the issue confronting the Court,
it consistently recognized the constitutional right to security of
tenure and employed the standards laid down by prevailing laws in
determining whether such right was violated.[58] The Court's
reference to laws other than the Constitution in resolving the issue
of dismissal is an implicit acknowledgment that the right to security
of tenure, while recognized in the Constitution, cannot be
implemented uniformly absent a law prescribing concrete
standards for its enforcement.
As discussed earlier, the validity of an employee's dismissal in
previous cases was examined by the Court in accordance with the
standards laid down by Congress in the Termination Pay Law, and
subsequently, the Labor Code and the amendments thereto. At
present, the validity of an employee's dismissal is weighed against
the standards laid down in Article 279, as well as Article 282 in
relation to Article 277(b) of the Labor Code, for a dismissal for just
cause, and Article 283 for a dismissal for an authorized cause.
The Effect of Statutory Violation
Of Notice and Hearing

Constitutional Commissioner Fr. Joaquin G. Bernas makes a

significant comment on Section 3, Article XIII of the 1987
Constitution:

There is no doubt that the dismissal of an employee even for just

cause, without prior notice or hearing, violates the Labor Code.
However, does such violation necessarily void the dismissal?

The [cluster] of rights guaranteed in the second paragraph are the

right "to security of tenure, humane conditions of work, and a living
wage." Again, although these have been set apart by a period (.)
from the next sentence and are therefore not modified by the final
phrase "as may be provided by law," it is not the intention to place
these beyond the reach of valid laws. xxx (emphasis supplied)[56]

Before I proceed with my discussion on dismissals for just causes, a

brief comment regarding dismissals for authorized cause under
Article 283 of the Labor Code. While the justiciable question in
Serrano pertained to a dismissal for unauthorized cause, the ruling
therein was crafted as definitive to dismissals for just cause.
Happily, the Decision today does not adopt the same unwise tack.
It should be recognized that dismissals for just cause and
dismissals for authorized cause are governed by different
provisions, entail divergent requisites, and animated by distinct
rationales. The language of Article 283 expressly effects the
termination for authorized cause to the service of written notice on
the workers and the Ministry of Labor at least one (1) month before
the intended date of termination. This constitutes an eminent
difference than dismissals for just cause, wherein the causal

At present, the Labor Code is the primary mechanism to carry out

the Constitution's directives. This is clear from Article 3[57] under
Chapter 1 thereof which essentially restates the policy on the
protection of labor as worded in the 1973 Constitution, which was
in force at the time of enactment of the Labor Code. It crystallizes
the fundamental law's policies on labor, defines the parameters of
the rights granted to labor such as the right to security of tenure,

PALISOC & SARMIENTO

251 | P a g e

relation between the notice and the dismissal is not expressly

stipulated. The circumstances distinguishing just and authorized
causes are too markedly different to be subjected to the same rules
and reasoning in interpretation.
Since the present petition is limited to a question arising from a
dismissal for just cause, there is no reason for making any
pronouncement regarding authorized causes. Such declaration
would be merely obiter, since they are neither the law of the case
nor dispositive of the present petition. When the question becomes
justiciable before this Court, we will be confronted with an
appropriate factual milieu on which we can render a more judicious
disposition of this admittedly important question.
B. Dismissal for Just Cause
There is no express provision in the Labor Code that voids a
dismissal for just cause on the ground that there was no notice or
hearing. Under Section 279, the employer is precluded from
dismissing an employee except for a just cause as provided in
Section 282, or an authorized cause under Sections 283 and 284.
Based on reading Section 279 alone, the existence of just cause by
itself is sufficient to validate the termination.
Just cause is defined by Article 282, which unlike Article 283, does
not condition the termination on the service of written notices. Still,
the dissenting opinions propound that even if there is just cause, a
termination may be invalidated due to the absence of notice or
hearing. This view is anchored mainly on constitutional moorings,
the basis of which I had argued against earlier. For determination
now is whether there is statutory basis under the Labor Code to
void a dismissal for just cause due to the absence of notice or
hearing.
As pointed out by Justice Mendoza in Serrano, it was only in 1989
that the Labor Code was amended to enshrine into statute the twin
requirements of notice and hearing.[59] Such requirements are
found in Article 277 of the Labor Code, under the heading
"Miscellaneous Provisions." Prior to the amendment, the noticehearing requirement was found under the implementing rules
issued by the then Minister of Labor in 1981. The present-day
implementing rules likewise mandate that the standards of due
process, including the requirement of written notice and hearing,
"be substantially observed."[60]
Indubitably, the failure to substantially comply with the standards
of due process, including the notice and hearing requirement, may

PALISOC & SARMIENTO

give rise to an actionable claim against the employer. Under Article

288, penalties may arise from violations of any provision of the
Labor Code. The Secretary of Labor likewise enjoys broad powers to
inquire into existing relations between employers and employees.
Systematic violations by management of the statutory right to due
process would fall under the broad grant of power to the Secretary
of Labor to investigate under Article 273.
However, the remedy of reinstatement despite termination for just
cause is simply not authorized by the Labor Code. Neither the
Labor Code nor its implementing rules states that a termination for
just cause is voided because the requirement of notice and hearing
was not observed. This is not simply an inadvertent semantic
failure, but a conscious effort to protect the prerogatives of the
employer to dismiss an employee for just cause. Notably, despite
the several pronouncements by this Court in the past equating the
notice-hearing requirement in labor cases to a constitutional
maxim, neither the legislature nor the executive has adopted the
same tack, even gutting the protection to provide that substantial
compliance with due process suffices.
The Labor Code significantly eroded management prerogatives in
the hiring and firing of employees. Whereas employees could be
dismissed even without just cause under the Termination Pay
Law[61], the Labor Code affords workers broad security of tenure.
Still, the law recognizes the right of the employer to terminate for
just cause. The just causes enumerated under the Labor Code
'serious misconduct or willful disobedience, gross and habitual
neglect, fraud or willful breach of trust, commission of a crime by
the employee against the employer, and other analogous causes'
are characterized by the harmful behavior of an employee against
the business or the person of the employer.
These just causes for termination are not negated by the absence
of notice or hearing. An employee who tries to kill the employer
cannot be magically absolved of trespasses just because the
employer forgot to serve due notice. Or a less extreme example,
the gross and habitual neglect of an employee will not be improved
upon just because the employer failed to conduct a hearing prior to
termination.
In fact, the practical purpose of requiring notice and hearing is to
afford the employee the opportunity to dispute the contention that
there was just cause in the dismissal. Yet it must be understood - if
a dismissed employee is deprived of the right to notice and
hearing, and thus denied the opportunity to present countervailing
evidence that disputes the finding of just cause, reinstatement will

252 | P a g e

be valid not because the notice and hearing requirement was not
observed, but because there was no just cause in the dismissal.
The opportunity to dispute the finding of the just cause is readily
available before the Labor Arbiter, and the subsequent levels of
appellate review. Again, as held in Serrano:
Even in cases of dismissal under Art. 282, the purpose for the
requirement of notice and hearing is not to comply with the Due
Process Clause of the Constitution. The time for notice and hearing
is at the trial stage. Then that is the time we speak of notice and
hearing as the essence of procedural due process. Thus,
compliance by the employer with the notice requirement before he
dismisses an employee does not foreclose the right of the latter to
question the legality of his dismissal. As Art. 277(b) provides, "Any
decision taken by the employer shall be without prejudice to the
right of the worker to contest the validity or legality of his dismissal
by filing a complaint with the regional branch of the National Labor
Relations Commission.[62]
The Labor Code presents no textually demonstrable commitment to
invalidate a dismissal for just cause due to the absence of notice or
hearing. This is not surprising, as such remedy will not restore the
employer or employee into equity. Absent a showing of integral
causation, the mutual infliction of wrongs does not negate either
injury, but instead enforces two independent rights of relief.
The Damages' Dimensions
Award for Damages Must Have Statutory Basis
The Court has grappled with the problem of what should be the
proper remedial relief of an employee dismissed with just cause,
but not afforded either notice or hearing. In a long line of cases,
beginning with Wenphil Corp. v. NLRC[63] and up until Serrano in
2000, the Court had deemed an indemnification award as sufficient
to answer for the violation by the employer against the employee.
However, the doctrine was modified in Serrano.
I disagree with Serrano insofar as it held that employees
terminated for just cause are to be paid backwages from the time
employment was terminated "until it is determined that the
termination is for just cause because the failure to hear him before
he is dismissed renders the termination of his employment without
legal effect."[64] Article 279 of the Labor Code clearly authorizes
the payment of backwages only if an employee is unjustly
dismissed. A dismissal for just cause is obviously antithetical to an

PALISOC & SARMIENTO

unjust dismissal. An award for backwages is not clearly warranted

by the law.
The Impropriety of Award for Separation Pay
The formula of one month's pay for every year served does have
statutory basis. It is found though in the Labor Code though, not
the Civil Code. Even then, such computation is made for separation
pay under the Labor Code. But separation pay is not an appropriate
as a remedy in this case, or in any case wherein an employee is
terminated for just cause. As Justice Vitug noted in his separate
opinion in Serrano, an employee whose employment is terminated
for a just cause is not entitled to the payment of separation
benefits.[65] Separation pay is traditionally a monetary award paid
as an alternative to reinstatement which can no longer be effected
in view of the long passage of time or because of the realities of the
situation.[66] However, under Section 7, Rule 1, Book VI of the
Omnibus Rules Implementing the Labor Code, "[t]he separation
from work of an employee for a just cause does not entitle him to
the termination pay provided in the Code."[67] Neither does the
Labor Code itself provide instances wherein separation pay is
warranted for dismissals with just cause. Separation pay is
warranted only for dismissals for authorized causes, as enumerated
in Article 283 and 284 of the Labor Code.
The Impropriety of Equity Awards
Admittedly, the Court has in the past authorized the award of
separation pay for duly terminated employees as a measure of
social justice, provided that the employee is not guilty of serious
misconduct reflecting on moral character.[68] This doctrine is
inapplicable in this case, as the Agabons are guilty of
abandonment, which is the deliberate and unjustified refusal of an
employee to resume his employment. Abandonment is tantamount
to serious misconduct, as it constitutes a willful breach of the
employer-employee relationship without cause.
The award of separation pay as a measure of social justice has no
statutory basis, but clearly emanates from the Court's so-called
"equity jurisdiction." The Court's equity jurisdiction as a basis for
award, no matter what form it may take, is likewise unwarranted in
this case. Easy resort to equity should be avoided, as it should yield
to positive rules which pre-empt and prevail over such persuasions.
[69] Abstract as the concept is, it does not admit to definite and
objective standards.

253 | P a g e

I consider the pronouncement regarding the proper monetary

awards in such cases as Wenphil Corp. v. NLRC,[70] Reta,[71] and
to a degree, even Serrano as premised in part on equity. This
decision is premised in part due to the absence of cited statutory
basis for these awards. In these cases, the Court deemed an
indemnity award proper without exactly saying where in statute
could such award be derived at. Perhaps, equity or social justice
can be invoked as basis for the award. However, this sort of
arbitrariness, indeterminacy and judicial usurpation of legislative
prerogatives is precisely the source of my discontent. Social justice
should be the aspiration of all that we do, yet I think it the more
mature attitude to consider that it ebbs and flows within our
statutes, rather than view it as an independent source of funding.

I also maintain that under Article 288 the penalty should be paid to
the State, and not to the person or persons who may have suffered
injury as a result of the violation. A penalty is a sum of money
which the law requires to be paid by way of punishment for doing
some act which is prohibited or for not doing some act which is
required to be done.[72] A penalty should be distinguished from
damages which is the pecuniary compensation or indemnity to a
person who has suffered loss, detriment, or injury, whether to his
person, property, or rights, on account of the unlawful act or
omission or negligence of another. Article 288 clearly serves as a
punitive fine, rather than a compensatory measure, since the
provision penalizes an act that violates the Labor Code even if such
act does not cause actual injury to any private person.

Article 288 of the Labor Code as a Source of Liability

Independent of the employee's interests protected by the Labor

Code is the interest of the State in seeing to it that its regulatory
laws are complied with. Article 288 is intended to satiate the latter
interest. Nothing in the language of Article 288 indicates an
intention to compensate or remunerate a private person for injury
he may have sustained.

Another putative source of liability for failure to render the notice

requirement is Article 288 of the Labor Code, which states:
Article 288 states:
Penalties. - Except as otherwise provided in this Code, or unless the
acts complained of hinges on a question of interpretation or
implementation of ambiguous provisions of an existing collective
bargaining agreement, any violation of the provisions of this Code
declared to be unlawful or penal in nature shall be punished with a
fine of not less than One Thousand Pesos (P1,000.00) nor more
than Ten Thousand Pesos (P10,000.00), or imprisonment of not less
than three months nor more than three years, or both such fine and
imprisonment at the discretion of the court.
It is apparent from the provision that the penalty arises due to
contraventions of the provisions of the Labor Code. It is also clear
that the provision comes into play regardless of who the violator
may be. Either the employer or the employee may be penalized, or
perhaps even officials tasked with implementing the Labor Code.
However, it is apparent that Article 288 is a penal provision; hence,
the prescription for penalties such as fine and imprisonment. The
Article is also explicit that the imposition of fine or imprisonment is
at the "discretion of the court." Thus, the proceedings under the
provision is penal in character. The criminal case has to be
instituted before the proper courts, and the Labor Code violation
subject thereof duly proven in an adversarial proceeding. Hence,
Article 288 cannot apply in this case and serve as basis to impose a
penalty on Riviera Homes.

PALISOC & SARMIENTO

It should be noted though that in Serrano, the Court observed that

since the promulgation of Wenphil Corp. v. NLRC[73] in 1989, "fines
imposed for violations of the notice requirement have varied from
P1,000.00 to P2,000.00 to P5,000.00 to P10,000.00."[74]
Interestingly, this range is the same range of the penalties imposed
by Article 288. These "fines" adverted to in Serrano were paid to
the dismissed employee. The use of the term "fines," as well as the
terminology employed a few other cases,[75] may have left an
erroneous impression that the award implemented beginning with
Wenphil was based on Article 288 of the Labor Code. Yet, an
examination of Wenphil reveals that what the Court actually
awarded to the employee was an "indemnity", dependent on the
facts of each case and the gravity of the omission committed by
the employer. There is no mention in Wenphil of Article 288 of the
Labor Code, or indeed, of any statutory basis for the award.
The Proper Basis: Employer's Liability under the Civil Code
As earlier stated, Wenphil allowed the payment of indemnity to the
employee dismissed for just cause is dependent on the facts of
each case and the gravity of the omission committed by the
employer. However, I considered Wenphil flawed insofar as it is
silent as to the statutory basis for the indemnity award. This failure,
to my mind, renders it unwise for to reinstate the Wenphil rule, and
foster the impression that it is the judicial business to invent
awards for damages without clear statutory basis.

254 | P a g e

The proper legal basis for holding the employer liable for monetary
damages to the employee dismissed for just cause is the Civil
Code. The award of damages should be measured against the loss
or injury suffered by the employee by reason of the employer's
violation or, in case of nominal damages, the right vindicated by
the award. This is the proper paradigm authorized by our law, and
designed to obtain the fairest possible relief.
Under Section 217(4) of the Labor Code, the Labor Arbiter has
jurisdiction over claims for actual, moral, exemplary and other
forms of damages arising from the employer-employee relations. It
is thus the duty of Labor Arbiters to adjudicate claims for damages,
and they should disabuse themselves of any inhibitions if it does
appear that an award for damages is warranted. As triers of facts in
a specialized field, they should attune themselves to the particular
conditions
or problems
attendant
to employer-employee
relationships, and thus be in the best possible position as to the
nature and amount of damages that may be warranted in this case.
The damages referred under Section 217(4) of the Labor Code are
those available under the Civil Code. It is but proper that the Civil
Code serve as the basis for the indemnity, it being the law that
regulates the private relations of the members of civil society,
determining their respective rights and obligations with reference
to persons, things, and civil acts.[76] No matter how impressed
with the public interest the relationship between a private employer
and employee is, it still is ultimately a relationship between private
individuals. Notably, even though the Labor Code could very well
have provided set rules for damages arising from the employeremployee relationship, referral was instead made to the concept of
damages as enumerated and defined under the Civil Code.
Given the long controversy that has dogged this present issue
regarding dismissals for just cause, it is wise to lay down standards
that would guide the proper award of damages under the Civil Code
in cases wherein the employer failed to comply with statutory due
process in dismissals for just cause.
First. I believe that it can be maintained as a general rule, that
failure to comply with the statutory requirement of notice
automatically gives rise to nominal damages, at the very least,
even if the dismissal was sustained for just cause.
Nominal damages are adjudicated in order that a right of a plaintiff
which has been violated or invaded by another may be vindicated
or recognized without having to indemnify the plaintiff for any loss

PALISOC & SARMIENTO

suffered by him.[77] Nominal damages may likewise be awarded in

every obligation arising from law, contracts, quasi-contracts, acts or
omissions punished by law, and quasi-delicts, or where any
property right has been invaded.
Clearly, the bare act of failing to observe the notice requirement
gives rise to nominal damages assessable against the employer
and due the employee. The Labor Code indubitably entitles the
employee to notice even if dismissal is for just cause, even if there
is no apparent intent to void such dismissals deficiently
implemented. It has also been held that one's employment,
profession, trade, or calling is a "property right" and the wrongful
interference therewith gives rise to an actionable wrong.[78]
In Better Buildings, Inc. v. NLRC,[79] the Court ruled that the while
the termination therein was for just and valid cause, the manner of
termination was done in complete disregard of the necessary
procedural safeguards.[80] The Court found nominal damages as
the proper form of award, as it was purposed to vindicate the right
to procedural due process violated by the employer.[81] A similar
holding was maintained in Iran v. NLRC[82] and Malaya Shipping v.
NLRC.[83] The doctrine has express statutory basis, duly recognizes
the existence of the right to notice, and vindicates the violation of
such right. It is sound, logical, and should be adopted as a general
rule.
The assessment of nominal damages is left to the discretion of the
court,[84] or in labor cases, of the Labor Arbiter and the successive
appellate levels. The authority to nominate standards governing
the award of nominal damages has clearly been delegated to the
judicial branch, and it will serve good purpose for this Court to
provide such guidelines. Considering that the affected right is a
property right, there is justification in basing the amount of nominal
damages on the particular characteristics attaching to the
claimant's employment. Factors such as length of service, positions
held, and received salary may be considered to obtain the proper
measure of nominal damages. After all, the degree by which a
property right should be vindicated is affected by the estimable
value of such right.
At the same time, it should be recognized that nominal damages
are not meant to be compensatory, and should not be computed
through a formula based on actual losses. Consequently, nominal
damages usually limited in pecuniary value.[85] This fact should be
impressed upon the prospective claimant, especially one who is
contemplating seeking actual/compensatory damages.

255 | P a g e

Second. Actual or compensatory damages are not available as a

matter of right to an employee dismissed for just cause but denied
statutory due process. They must be based on clear factual and
legal bases,[86] and correspond to such pecuniary loss suffered by
the employee as duly proven.[87] Evidently, there is less degree of
discretion to award actual or compensatory damages.
I recognize some inherent difficulties in establishing actual
damages in cases for terminations validated for just cause. The
dismissed employee retains no right to continued employment from
the moment just cause for termination exists, and such time most
likely would have arrived even before the employer is liable to send
the first notice. As a result, an award of backwages disguised as
actual damages would almost never be justified if the employee
was dismissed for just cause. The possible exception would be if it
can be proven the ground for just cause came into being only after
the dismissed employee had stopped receiving wages from the
employer.
Yet it is not impossible to establish a case for actual damages if
dismissal was for just cause. Particularly actionable, for example, is
if the notices are not served on the employee, thus hampering
his/her opportunities to obtain new employment. For as long as it
can be demonstrated that the failure of the employer to observe
procedural due process mandated by the Labor Code is the
proximate cause of pecuniary loss or injury to the dismissed
employee, then actual or compensatory damages may be awarded.
Third. If there is a finding of pecuniary loss arising from the
employer violation, but the amount cannot be proved with
certainty, then temperate or moderate damages are available
under Article 2224 of the Civil Code. Again, sufficient discretion is
afforded to the adjudicator as regards the proper award, and the
award must be reasonable under the circumstances.[88] Temperate
or nominal damages may yet prove to be a plausible remedy,
especially when common sense dictates that pecuniary loss was
suffered, but incapable of precise definition.

The records indicate no proof exists to justify the award of actual or

compensatory damages, as it has not been established that the
failure to serve the second notice on the Agabons was the
proximate cause to any loss or injury. In fact, there is not even any
showing that such violation caused any sort of injury or discomfort
to the Agabons. Nor do they assert such causal relation. Thus, the
only appropriate award of damages is nominal damages.
Considering the circumstances, I agree that an award of Fifteen
Thousand Pesos (P15,000.00) each for the Agabons is sufficient.
All premises considered, I VOTE to:
(1) DENY the PETITION for lack of merit, and AFFIRM the Decision of
the Court of Appeals dated 23 January 2003, with the
MODIFICATION that in addition, Riviera Homes be ORDERED to pay
the petitioners the sum of Fifteen Thousand Pesos (P15,000.00)
each, as nominal damages.
(2) HOLD that henceforth, dismissals for just cause may not be
invalidated due to the failure to observe the due process
requirements under the Labor Code, and that the only indemnity
award available to the employee dismissed for just cause are
damages under the Civil Code as duly proven. Any and all previous
rulings and statements of the Court inconsistent with this holding
are now deemed INOPERATIVE.
DANTE O. TINGA

Fourth. Moral and exemplary damages may also be awarded in the

appropriate circumstances. As pointed out by the Decision, moral
damages are recoverable where the dismissal of the employee was
attended by bad faith, fraud, or was done in a manner contrary to
morals, good customs or public policy, or the employer committed
an act oppressive to labor.[89] Exemplary damages may avail if the
dismissal was effected in a wanton, oppressive or malevolent
manner.
Appropriate Award of Damages to the Agabons

PALISOC & SARMIENTO

256 | P a g e

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C.

LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents.
G.R. No. 139465 | 2000-10-17

VIII. By instituting a 'proceeding' not contemplated by PD No. 1069,

the Supreme Court has encroached upon the constitutional
boundaries separating it from the other two co-equal branches of
government.

RESOLUTION

IX. Bail is not a matter of right in proceedings leading to extradition

or in extradition proceedings."[2]

PUNO, J.:
On January 18, 2000, by a vote of 9-6, we dismissed the petition at
bar and ordered the petitioner to furnish private respondent copies
of the extradition request and its supporting papers and to grant
him a reasonable period within which to file his comment with
supporting evidence.[1]
On February 3, 2000, the petitioner timely filed an Urgent Motion
for Reconsideration. He assails the decision on the following
grounds:
"The majority decision failed to appreciate the following facts and
points of substance and of value which, if considered, would alter
the result of the case, thus:
I. There is a substantial difference between an evaluation process
antecedent to the filing of an extradition petition in court and a
preliminary investigation.
II. Absence of notice and hearing during the evaluation process will
not result in a denial of fundamental fairness.
III. In the evaluation process, instituting a notice and hearing
requirement satisfies no higher objective.
IV. The deliberate omission of the notice and hearing requirement in
the Philippine Extradition Law is intended to prevent flight.
V. There is a need to balance the interest between the discretionary
powers of government and the rights of an individual.
VI. The instances cited in the assailed majority decision when the
twin rights of notice and hearing may be dispensed with in this
case results in a non sequitur conclusion.
VII. Jimenez is not placed in imminent danger of arrest by the
Executive Branch necessitating notice and hearing.

PALISOC & SARMIENTO

On March 28, 2000, a 58-page Comment was filed by the private

respondent Mark B. Jimenez, opposing petitioner's Urgent Motion
for Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow
Continuation and Maintenance of Action and Filing of Reply.
Thereafter, petitioner filed on June 7, 2000 a Manifestation with the
attached Note 327/00 from the Embassy of Canada and Note No.
34 from the Security Bureau of the Hongkong SAR Government
Secretariat. On August 15, 2000, private respondent filed a
Manifestation and Motion for Leave to File Rejoinder in the event
that petitioner's April 5, 2000 Motion would be granted. Private
respondent also filed on August 18, 2000, a Motion to Expunge
from the records petitioner's June 7, 2000 Manifestation with its
attached note verbales. Except for the Motion to Allow Continuation
and Maintenance of Action, the Court denies these pending motions
and
hereby
resolves
petitioner's
Urgent
Motion
for
Reconsideration.
The jugular issue is whether or not the private respondent is
entitled to the due process right to notice and hearing during the
evaluation stage of the extradition process.
We now hold that private respondent is bereft of the right to notice
and hearing during the evaluation stage of the extradition process.
First. P.D. No. 1069[3] which implements the RP-US Extradition
Treaty provides the time when an extraditee shall be furnished a
copy of the petition for extradition as well as its supporting papers,
i.e., after the filing of the petition for extradition in the extradition
court, viz:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service
of Notices. - (1) Immediately upon receipt of the petition, the
presiding judge of the court shall, as soon as practicable, summon
the accused to appear and to answer the petition on the day and
hour fixed in the order . . . Upon receipt of the answer, or should
the accused after having received the summons fail to answer

257 | P a g e

within the time fixed, the presiding judge shall hear the case or set
another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest,
if issued, shall be promptly served each upon the accused and the
attorney having charge of the case."
It is of judicial notice that the summons includes the petition for
extradition which will be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and in P.D. No.
1069 which gives an extraditee the right to demand from the
petitioner Secretary of Justice copies of the extradition request from
the US government and its supporting documents and to comment
thereon while the request is still undergoing evaluation. We cannot
write a provision in the treaty giving private respondent that right
where there is none. It is well-settled that a "court cannot alter,
amend, or add to a treaty by the insertion of any clause, small or
great, or dispense with any of its conditions and requirements or
take away any qualification, or integral part of any stipulation, upon
any motion of equity, or general convenience, or substantial
justice."[4]
Second. All treaties, including the RP-US Extradition Treaty, should
be interpreted in light of their intent. Nothing less than the Vienna
Convention on the Law of Treaties to which the Philippines is a
signatory provides that "a treaty shall be interpreted in good faith
in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in light of its object and
purpose."[5] (emphasis supplied) The preambular paragraphs of
P.D. No. 1069 define its intent, viz:
"WHEREAS, under the Constitution[,] the Philippines adopts the
generally accepted principles of international law as part of the law
of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the
state where it is committed but also of any other state to which the
criminal may have escaped, because it saps the foundation of
social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go
unpunished;
WHEREAS, in recognition of this principle the Philippines recently
concluded an extradition treaty with the Republic of Indonesia, and
intends to conclude similar treaties with other interested countries;

PALISOC & SARMIENTO

x x x." (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines forge
extradition treaties to arrest the dramatic rise of international and
transnational crimes like terrorism and drug trafficking. Extradition
treaties provide the assurance that the punishment of these crimes
will not be frustrated by the frontiers of territorial sovereignty.
Implicit in the treaties should be the unbending commitment that
the perpetrators of these crimes will not be coddled by any
signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an
interpretation that will minimize if not prevent the escape of
extraditees from the long arm of the law and expedite their trial.
The submission of the private respondent, that as a probable
extraditee under the RP-US Extradition Treaty he should be
furnished a copy of the US government request for his extradition
and its supporting documents even while they are still under
evaluation by petitioner Secretary of Justice, does not meet this
desideratum. The fear of the petitioner Secretary of Justice that the
demanded notice is equivalent to a notice to flee must be deeply
rooted on the experience of the executive branch of our
government. As it comes from the branch of our government in
charge of the faithful execution of our laws, it deserves the careful
consideration of this Court. In addition, it cannot be gainsaid that
private respondent's demand for advance notice can delay the
summary process of executive evaluation of the extradition request
and its accompanying papers. The foresight of Justice Oliver
Wendell Holmes did not miss this danger. In 1911, he held:
"It is common in extradition cases to attempt to bring to bear all
the factitious niceties of a criminal trial at common law. But it is a
waste of time . . . if there is presented, even in somewhat
untechnical form according to our ideas, such reasonable ground to
suppose him guilty as to make it proper that he should be tried,
good faith to the demanding government requires his surrender."[6]
(emphasis supplied)
We erode no right of an extraditee when we do not allow time to
stand still on his prosecution. Justice is best served when done
without delay.
Third. An equally compelling factor to consider is the
understanding of the parties themselves to the RP-US Extradition
Treaty as well as the general interpretation of the issue in question
by other countries with similar treaties with the Philippines. The

258 | P a g e

rule is recognized that while courts have the power to interpret

treaties, the meaning given them by the departments of
government particularly charged with their negotiation and
enforcement is accorded great weight.[7] The reason for the rule is
laid down in Santos III v. Northwest Orient Airlines, et al.,[8] where
we stressed that a treaty is a joint executive-legislative act which
enjoys the presumption that "it was first carefully studied and
determined to be constitutional before it was adopted and given
the force of law in the country."
Our executive department of government, thru the Department of
Foreign Affairs (DFA) and the Department of Justice (DOJ), has
steadfastly maintained that the RP-US Extradition Treaty and P.D.
No. 1069 do not grant the private respondent a right to notice and
hearing during the evaluation stage of an extradition process.[9]
This understanding of the treaty is shared by the US government,
the other party to the treaty.[10] This interpretation by the two
governments cannot be given scant significance. It will be
presumptuous for the Court to assume that both governments did
not understand the terms of the treaty they concluded.
Yet, this is not all. Other countries with similar extradition treaties
with the Philippines have expressed the same interpretation
adopted by the Philippine and US governments. Canadian[11] and
Hongkong[12] authorities, thru appropriate note verbales
communicated to our Department of Foreign Affairs, stated in
unequivocal language that it is not an international practice to
afford a potential extraditee with a copy of the extradition papers
during the evaluation stage of the extradition process. We cannot
disregard such a convergence of views unless it is manifestly
erroneous.
Fourth. Private respondent, however, peddles the postulate that
he must be afforded the right to notice and hearing as required by
our Constitution. He buttresses his position by likening an
extradition proceeding to a criminal proceeding and the evaluation
stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is
not a criminal proceeding which will call into operation all the rights
of an accused as guaranteed by the Bill of Rights. To begin with, the
process of extradition does not involve the determination of the
guilt or innocence of an accused.[13] His guilt or innocence will be
adjudged in the court of the state where he will be extradited.
Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked
by an extraditee especially by one whose extradition papers are

PALISOC & SARMIENTO

still undergoing evaluation.[14] As held by the US Supreme Court in

United States v. Galanis:
"An extradition proceeding is not a criminal prosecution, and the
constitutional safeguards that accompany a criminal trial in this
country do not shield an accused from extradition pursuant to a
valid treaty."[15]
There are other differences between an extradition proceeding and
a criminal proceeding. An extradition proceeding is summary in
nature while criminal proceedings involve a full-blown trial.[16] In
contradistinction to a criminal proceeding, the rules of evidence in
an extradition proceeding allow admission of evidence under less
stringent standards.[17] In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable doubt
for conviction[18] while a fugitive may be ordered extradited "upon
showing of the existence of a prima facie case."[19] Finally, unlike
in a criminal case where judgment becomes executory upon being
rendered final, in an extradition proceeding, our courts may
adjudge an individual extraditable but the President has the final
discretion to extradite him.[20] The United States adheres to a
similar practice whereby the Secretary of State exercises wide
discretion in balancing the equities of the case and the demands of
the nation's foreign relations before making the ultimate decision to
extradite.[21]
As an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a
preliminary investigation, the due process safeguards in the latter
do not necessarily apply to the former. This we hold for the
procedural due process required by a given set of circumstances
"must begin with a determination of the precise nature of the
government function involved as well as the private interest that
has been affected by governmental action."[22] The concept of due
process is flexible for "not all situations calling for procedural
safeguards call for the same kind of procedure."[23]
Fifth. Private respondent would also impress upon the Court the
urgency of his right to notice and hearing considering the alleged
threat to his liberty "which may be more priceless than life."[24]
The supposed threat to private respondent's liberty is perceived to
come from several provisions of the RP-US Extradition Treaty and
P.D. No. 1069 which allow provisional arrest and temporary
detention.
We first deal with provisional arrest. The RP-US Extradition Treaty
provides as follows:

259 | P a g e

"PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the
provisional arrest of the person sought pending presentation of the
request for extradition. A request for provisional arrest may be
transmitted through the diplomatic channel or directly between the
Philippine Department of Justice and the United States Department
of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statement of the facts of the case, including, if possible,
the time and location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of arrest or finding of
guilt or judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought
will follow.

the province or city having jurisdiction of the place, who shall issue
the warrant for the provisional arrest of the accused. The Director
of the National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the result of its
request.
(d) If within a period of 20 days after the provisional arrest the
Secretary of Foreign Affairs has not received the request for
extradition and the documents mentioned in Section 4 of this
Decree, the accused shall be released from custody." (emphasis
supplied)
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide
that private respondent may be provisionally arrested only pending
receipt of the request for extradition. Our DFA has long received the
extradition request from the United States and has turned it over to
the DOJ. It is undisputed that until today, the United States has not
requested for private respondent's provisional arrest. Therefore, the
threat to private respondent's liberty has passed. It is more
imagined than real.

3. The Requesting State shall be notified without delay of the

disposition of its application and the reasons for any denial.

Nor can the threat to private respondent's liberty come from

Section 6 of P.D. No. 1069, which provides:

4. A person who is provisionally arrested may be discharged from

custody upon the expiration of sixty (60) days from the date of
arrest pursuant to this Treaty if the executive authority of the
Requested State has not received the formal request for extradition
and the supporting documents required in Article 7." (emphasis
supplied)

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service

of Notices.- (1) Immediately upon receipt of the petition, the
presiding judge of the court shall, as soon as practicable, summon
the accused to appear and to answer the petition on the day and
hour fixed in the order. [H]e may issue a warrant for the immediate
arrest of the accused which may be served anywhere within the
Philippines if it appears to the presiding judge that the immediate
arrest and temporary detention of the accused will best serve the
ends of justice. . .

In relation to the above, Section 20 of P.D. No. 1069 provides:

"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting
state may, pursuant to the relevant treaty or convention and while
the same remains in force, request for the provisional arrest of the
accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of
the National Bureau of Investigation, Manila, either through the
diplomatic channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any
official acting on his behalf shall upon receipt of the request
immediately secure a warrant for the provisional arrest of the
accused from the presiding judge of the Court of First Instance of

PALISOC & SARMIENTO

(2) The order and notice as well as a copy of the warrant of arrest,
if issued, shall be promptly served each upon the accused and the
attorney having charge of the case." (emphasis supplied)
It is evident from the above provision that a warrant of arrest for
the temporary detention of the accused pending the extradition
hearing may only be issued by the presiding judge of the
extradition court upon filing of the petition for extradition. As the
extradition process is still in the evaluation stage of pertinent
documents and there is no certainty that a petition for extradition
will be filed in the appropriate extradition court, the threat to
private respondent's liberty is merely hypothetical.

260 | P a g e

Sixth. To be sure, private respondent's plea for due process

deserves serious consideration involving as it does his primordial
right to liberty. His plea to due process, however, collides with
important state interests which cannot also be ignored for they
serve the interest of the greater majority. The clash of rights
demands a delicate balancing of interests approach which is a
"fundamental postulate of constitutional law."[25] The approach
requires that we "take conscious and detailed consideration of the
interplay of interests observable in a given situation or type of
situation."[26] These interests usually consist in the exercise by an
individual of his basic freedoms on the one hand, and the
government's promotion of fundamental public interest or policy
objectives on the other.[27]
In the case at bar, on one end of the balancing pole is the private
respondent's claim to due process predicated on Section 1, Article
III of the Constitution, which provides that "No person shall be
deprived of life, liberty, or property without due process of law . . ."
Without a bubble of doubt, procedural due process of law lies at the
foundation of a civilized society which accords paramount
importance to justice and fairness. It has to be accorded the weight
it deserves.
This brings us to the other end of the balancing pole. Petitioner
avers that the Court should give more weight to our national
commitment under the RP-US Extradition Treaty to expedite the
extradition to the United States of persons charged with violation of
some of its laws. Petitioner also emphasizes the need to defer to
the judgment of the Executive on matters relating to foreign affairs
in order not to weaken if not violate the principle of separation of
powers.
Considering that in the case at bar, the extradition proceeding is
only at its evaluation stage, the nature of the right being claimed
by the private respondent is nebulous and the degree of prejudice
he will allegedly suffer is weak, we accord greater weight to the
interests espoused by the government thru the petitioner Secretary
of Justice. In Angara v. Electoral Commission, we held that the
"Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial
departments of the government."[28] Under our constitutional
scheme, executive power is vested in the President of the
Philippines.[29] Executive power includes, among others, the power
to contract or guarantee foreign loans and the power to enter into
treaties or international agreements.[30] The task of safeguarding
that these treaties are duly honored devolves upon the executive
department which has the competence and authority to so act in

PALISOC & SARMIENTO

the international arena.[31] It is traditionally held that the President

has power and even supremacy over the country's foreign
relations.[32] The executive department is aptly accorded
deference on matters of foreign relations considering the
President's most comprehensive and most confidential information
about the international scene of which he is regularly briefed by our
diplomatic and consular officials. His access to ultra-sensitive
military intelligence data is also unlimited.[33] The deference we
give to the executive department is dictated by the principle of
separation of powers. This principle is one of the cornerstones of
our democratic government. It cannot be eroded without
endangering our government.
The Philippines also has a national interest to help in suppressing
crimes and one way to do it is to facilitate the extradition of
persons covered by treaties duly entered by our government. More
and more, crimes are becoming the concern of one world. Laws
involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards
globalization is to deny easy refuge to a criminal whose activities
threaten the peace and progress of civilized countries. It is to the
great interest of the Philippines to be part of this irreversible
movement in light of its vulnerability to crimes, especially
transnational crimes.
In tilting the balance in favor of the interests of the State, the Court
stresses that it is not ruling that the private respondent has no right
to due process at all throughout the length and breadth of the
extrajudicial proceedings. Procedural due process requires a
determination of what process is due, when it is due, and the
degree of what is due. Stated otherwise, a prior determination
should be made as to whether procedural protections are at all due
and when they are due, which in turn depends on the extent to
which an individual will be "condemned to suffer grievous loss."[34]
We have explained why an extraditee has no right to notice and
hearing during the evaluation stage of the extradition process. As
aforesaid, P.D. No. 1069 which implements the RP-US Extradition
Treaty affords an extraditee sufficient opportunity to meet the
evidence against him once the petition is filed in court. The time for
the extraditee to know the basis of the request for his extradition is
merely moved to the filing in court of the formal petition for
extradition. The extraditee's right to know is momentarily withheld
during the evaluation stage of the extradition process to
accommodate the more compelling interest of the State to prevent
escape of potential extraditees which can be precipitated by
premature information of the basis of the request for his
extradition. No less compelling at that stage of the extradition

261 | P a g e

proceedings is the need to be more deferential to the judgment of a

co-equal branch of the government, the Executive, which has been
endowed by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this balance of
interests is not a static but a moving balance which can be adjusted
as the extradition process moves from the administrative stage to
the judicial stage and to the execution stage depending on factors
that will come into play. In sum, we rule that the temporary hold on
private respondent's privilege of notice and hearing is a soft
restraint on his right to due process which will not deprive him of
fundamental fairness should he decide to resist the request for his
extradition to the United States. There is no denial of due process
as long as fundamental fairness is assured a party.
We end where we began. A myopic interpretation of the due
process clause would not suffice to resolve the conflicting rights in
the case at bar. With the global village shrinking at a rapid pace,
propelled as it is by technological leaps in transportation and
communication, we need to push further back our horizons and
work with the rest of the civilized nations and move closer to the
universal goals of "peace, equality, justice, freedom, cooperation
and amity with all nations."[35] In the end, it is the individual who
will reap the harvest of peace and prosperity from these efforts.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED.
The Decision in the case at bar promulgated on January 18, 2000
is REVERSED. The assailed Order issued by the public respondent
judge on August 9, 1999 is SET ASIDE. The temporary restraining
order issued by this Court on August 17, 1999 is
made PERMANENT. The Regional Trial Court of Manila, Branch 25
is enjoined from conducting further proceedings in Civil Case No.
99-94684.
SO ORDERED.

PALISOC & SARMIENTO

262 | P a g e

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN

(Third Division) and PEOPLE OF THE PHILIPPINES,
respondents.
G.R. No. 148560 | 2001-11-19
EN BANC
DECISION
BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury
of his pen in defense of the rights of the individual from the vast
powers of the State and the inroads of societal pressure. But even
as he draws a sacrosanct line demarcating the limits on
individuality beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with very little
regard to social interference - he veritably acknowledges that the
exercise of rights and liberties is imbued with a civic obligation,
which society is justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or

collectively, in interfering with the liberty of action of any of their
number, is self-protection. The only purpose for which power can
be rightfully exercised over any member of a civilized community,
against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the

State to self-preservation. With the end of maintaining the integrity
and cohesiveness of the body politic, it behooves the State to
formulate a system of laws that would compel obeisance to its
collective wisdom and inflict punishment for non-observance.

PALISOC & SARMIENTO

The movement from Mill's individual liberalism to unsystematic

collectivism wrought changes in the social order, carrying with it a
new formulation of fundamental rights and duties more attuned to
the imperatives of contemporary socio-political ideologies. In the
process, the web of rights and State impositions became tangled
and obscured, enmeshed in threads of multiple shades and colors,
the skein irregular and broken. Antagonism, often outright collision,
between the law as the expression of the will of the State, and the
zealous attempts by its members to preserve their individuality and
dignity, inevitably followed. It is when individual rights are pitted
against State authority that judicial conscience is put to its severest
test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be

prosecuted under RA 7080 (An Act Defining and Penalizing the
Crime of Plunder),1 as amended by RA 7659,2 wishes to impress
upon us that the assailed law is so defectively fashioned that it
crosses that thin but distinct line which divides the valid from the
constitutionally infirm. He therefore makes a stringent call for this
Court to subject the Plunder Law to the crucible of constitutionality
mainly because, according to him, (a) it suffers from the vice of
vagueness; (b) it dispenses with the "reasonable doubt" standard in
criminal prosecutions; and, (c) it abolishes the element of mens rea
in crimes already punishable under The Revised Penal Code, all of
which are purportedly clear violations of the fundamental rights of
the accused to due process and to be informed of the nature and
cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner

to have transgressed constitutional boundaries are Secs. 1, par. (d),
2 and 4 which are reproduced hereunder:

263 | P a g e

Section 1. x x x x (d) "Ill-gotten wealth" means any asset,

property, business, enterprise or material possession of any person
within the purview of Section Two (2) hereof, acquired by him
directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or
series of the following means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation

of public funds or raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share,

percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets

belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any

shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business
enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial

monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or special
interests; or

PALISOC & SARMIENTO

(6) By taking advantage of official position, authority, relationship,

connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino people
and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public

officer who, by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires
ill-gotten wealth through a combination or series of overt or
criminal actsas described in Section 1 (d) hereof, in the aggregate
amount or total value of at least fifty million pesos
(P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and
extenuating circumstances as provided by the Revised Penal Code
shall be considered by the court. The court shall declare any and all
ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor of the State
(underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime

of plunder, it shall not be necessary to proveeach and every
criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire illgotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts

264 | P a g e

indicative
of
the
overall
conspiracy (underscoring supplied).

unlawful

scheme

or

for the arrest of the accused." On 25 June 2001 petitioner's motion

for reconsideration was denied by the Sandiganbayan.

On 4 April 2001 the Office of the Ombudsman filed before the

Sandiganbayan eight (8) separate Informations, docketed as: (a)
Crim. Case No. 26558, for violation of RA 7080, as amended by RA
7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation
of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019
(Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case
No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees);
(d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal
Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA
No. 142, as amended by RA 6085).

On 14 June 2001 petitioner moved to quash the Information in

Crim. Case No. 26558 on the ground that the facts alleged therein
did not constitute an indictable offense since the law on which it
was based was unconstitutional for vagueness, and that the
Amended Information for Plunder charged more than one (1)
offense. On 21 June 2001 the Government filed its Opposition to the
Motion to Quash, and five (5) days later or on 26 June 2001
petitioner submitted his Reply to the Opposition. On 9 July 2001 the
Sandiganbayan denied petitioner's Motion to Quash.

On 11 April 2001 petitioner filed an Omnibus Motion for the remand

of the case to the Ombudsman for preliminary investigation with
respect to specification "d" of the charges in the Information in
Crim. Case No. 26558; and, for reconsideration/reinvestigation of
the offenses under specifications "a," "b," and "c" to give the
accused an opportunity to file counter-affidavits and other
documents necessary to prove lack of probable cause. Noticeably,
the grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to
prove lack of probable cause. The purported ambiguity of the
charges and the vagueness of the law under which they are
charged were never raised in that Omnibus Motion thus indicating
the explicitness and comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a

Resolution in Crim. Case No. 26558 finding that "a probable cause
for the offense of PLUNDER exists to justify the issuance of warrants

PALISOC & SARMIENTO

As concisely delineated by this Court during the oral arguments on

18 September 2001, the issues for resolution in the instant petition
for certiorari are: (a) The Plunder Law is unconstitutional for being
vague; (b) The Plunder Law requires less evidence for proving the
predicate crimes of plunder and therefore violates the rights of the
accused to due process; and, (c) Whether Plunder as defined in RA
7080 is a malum prohibitum, and if so, whether it is within the
power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the

validity of legislation is predicated on the basic principle that a
legislative measure is presumed to be in harmony with the
Constitution.3 Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional
adjudication. This strong predilection for constitutionality takes its
bearings on the idea that it is forbidden for one branch of the
government to encroach upon the duties and powers of another.
Thus it has been said that the presumption is based on the

265 | P a g e

deference the judicial branch accords to its coordinate branch - the

legislature.

If there is any reasonable basis upon which the legislation may

firmly rest, the courts must assume that the legislature is ever
conscious of the borders and edges of its plenary powers, and has
passed the law with full knowledge of the facts and for the purpose
of promoting what is right and advancing the welfare of the
majority. Hence in determining whether the acts of the legislature
are in tune with the fundamental law, courts should proceed with
judicial restraint and act with caution and forbearance. Every
intendment of the law must be adjudged by the courts in favor of
its constitutionality, invalidity being a measure of last resort. In
construing therefore the provisions of a statute, courts must first
ascertain whether an interpretation is fairly possible to sidestep the
question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as

long as there is some basis for the decision of the court, the
constitutionality of the challenged law will not be touched and the
case will be decided on other available grounds. Yet the force of the
presumption is not sufficient to catapult a fundamentally deficient
law into the safe environs of constitutionality. Of course, where the
law clearly and palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the positive
commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs

heavily on the party challenging the validity of the statute. He must
demonstrate beyond any tinge of doubt that there is indeed an
infringement of the constitution, for absent such a showing, there
can be no finding of unconstitutionality. A doubt, even if wellfounded, will hardly suffice. As tersely put by Justice Malcolm, "To

PALISOC & SARMIENTO

doubt is to sustain."5 And petitioner has miserably failed in the

instant case to discharge his burden and overcome the
presumption of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards

and well-defined parameters which would enable the accused to
determine the nature of his violation. Section 2 is sufficiently
explicit in its description of the acts, conduct and conditions
required or forbidden, and prescribes the elements of the crime
with reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in

connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth

through a combination or series of the following overt or criminal
acts: (a) through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (b) by
receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the National Government or any
of its subdivisions, agencies or instrumentalities of Government
owned or controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including
the promise of future employment in any business enterprise or
undertaking; (e) by establishing agricultural, industrial or
commercial
monopolies
or
other
combinations
and/or
implementation of decrees and orders intended to benefit

266 | P a g e

particular persons or special interests; or (f) by taking advantage of

official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the
Philippines; and,

T.
Ricaforte,
Alma
Alfaro,
JOHN
DOE
a.k.a.
Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
and John DOES & Jane Does, of the crime of Plunder, defined and
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No.
7659, committed as follows:

3. That the aggregate amount or total value of the ill-gotten wealth

amassed, accumulated or acquired is at least P50,000,000.00.

That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court,
accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE
REPUBLIC
OF
THE
PHILIPPINES,
by
himself AND/OR in CONNIVANCE/CONSPIRACY with
his
coaccused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING
UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and
there willfully, unlawfully and criminally amass, accumulate and
acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth
in the aggregate amount or TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS(P4,097,804,173.17), more or less,THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND
TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC
OF
THE
PHILIPPINES,
through ANY
OR
A combination OR A series of overt OR criminal acts, OR SIMILAR
SCHEMES OR MEANS, described as follows:

As long as the law affords some comprehensible guide or rule that

would inform those who are subject to it what conduct would
render them liable to its penalties, its validity will be sustained. It
must sufficiently guide the judge in its application; the counsel, in
defending one charged with its violation; and more importantly, the
accused, in identifying the realm of the proscribed conduct. Indeed,
it can be understood with little difficulty that what the assailed
statute punishes is the act of a public officer in amassing or
accumulating ill-gotten wealth of at leastP50,000,000.00 through a
series or combination of acts enumerated in Sec. 1, par. (d), of the
Plunder Law.

In fact, the amended Information itself closely tracks the language

of the law, indicating with reasonable certainty the various
elements of the offense which petitioner is alleged to have
committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,

Office of the Ombudsman, hereby accuses former PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada,
a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with
Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda

PALISOC & SARMIENTO

(a) by receiving OR collecting, directly or indirectly, on SEVERAL

INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with

267 | P a g e

co-accusedCHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda

T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES,
in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;

(b)
by DIVERTING,
RECEIVING,
misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR
THEIR PERSONAL gain and benefit, public funds in the amount of
ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or
less, representing a portion of the TWO HUNDRED MILLION
PESOS (P200,000,000.00) tobacco excise tax share allocated for
the province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe
a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic
supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL

GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS
ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR
LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION
FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN
PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND

PALISOC & SARMIENTO

JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF

SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF
ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM
THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,

SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR LESS THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING
THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT
THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as

there is obviously none - that will confuse petitioner in his defense.
Although subject to proof, these factual assertions clearly show that
the elements of the crime are easily understood and provide
adequate contrast between the innocent and the prohibited acts.
Upon such unequivocal assertions, petitioner is completely
informed of the accusations against him as to enable him to
prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the
key phrase "a combination or series of overt or criminal acts" found
in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4.
These omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and

268 | P a g e

deny him the right to be informed of the nature and cause of the
accusation against him, hence, violative of his fundamental right to
due process.

The rationalization seems to us to be pure sophistry. A statute is

not rendered uncertain and void merely because general terms are
used therein, or because of the employment of terms without
defining them;6 much less do we have to define every word we
use. Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and every word in
an enactment. Congress is not restricted in the form of expression
of its will, and its inability to so define the words employed in a
statute will not necessarily result in the vagueness or ambiguity of
the law so long as the legislative will is clear, or at least, can be
gathered from the whole act, which is distinctly expressed in the
Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that

words of a statute will be interpreted in their natural, plain and
ordinary acceptation and signification,7 unless it is evident that the
legislature intended a technical or special legal meaning to those
words.8 The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory
phraseology in such a manner is always presumed. Thus, Webster's
New Collegiate Dictionary contains the following commonly
accepted definition of the words "combination" and "series:"

Series - a number of things or events of the same class coming one

after another in spatial and temporal succession.

That Congress intended the words "combination" and "series" to be

understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA
7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON
JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder.
We say THROUGH A COMBINATION OR SERIES OF OVERT OR
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now
when we say combination, we actually mean to say, if there are
two or more means, we mean to say that number one and two or
number one and something else are included, how about a series
of the same act? For example, through misappropriation,
conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -

Combination - the result or product of combining; the act or process

of combining. To combine is to bring into such close relationship as
to obscure individual characters.

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.

PALISOC & SARMIENTO

269 | P a g e

REP. ISIDRO: Not twice?

REP. GARCIA: Yes.

REP. GARCIA: Yes. Combination is not twice - but combination, two

acts.

SEN. TANADA: Two different.

REP. ISIDRO: So in other words, thats it. When we say combination,

we mean, two different acts. It cannot be a repetition of the same
act.
REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

REP. ISIDRO: No, no. Supposing one act is repeated, so there are
two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because when we
say combination or series, we seem to say that two or more, di ba?

SENATOR MACEDA: In line with our interpellations that sometimes

"one" or maybe even "two" acts may already result in such a big
amount, on line 25, would the Sponsor consider deleting the words
"a series of overt or," to read, therefore: "or conspiracy COMMITTED
by criminal acts such as." Remove the idea of necessitating "a
series." Anyway, the criminal acts are in the plural.

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes.

That is why, I said, that is a very good suggestion because if it is
only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So x x x x

SENATOR TANADA: That would mean a combination of two or more

of the acts mentioned in this.

REP. GARCIA: Series. One after the other eh di....

SENATOR MACEDA: Yes, because "a series" implies several or

many; two or more.

SEN. TANADA: So that would fall under the term "series?"

SENATOR TANADA: Accepted, Mr. President x x x x

REP. GARCIA: Series, oo.

REP. ISIDRO: Now,
misappropriations....

if

REP. GARCIA: Its not...

combination. Series.

it

Two

is

combination,

misappropriations

ano,

will

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?

PALISOC & SARMIENTO

THE PRESIDENT: Probably two or more would be....

not

two

be

THE PRESIDENT: If there is only one, then he has to be prosecuted

under the particular crime. But when we say "acts of plunder" there
should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring
to at least two (2) acts falling under different categories of
enumeration provided in Sec. 1, par. (d), e.g., raids on the public
treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance

270 | P a g e

of assets belonging to the National Government under Sec. 1, par.

(d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or
more overt or criminal acts falling under the same category of
enumeration found in Sec. 1, par. (d), say, misappropriation,
malversation and raids on the public treasury, all of which fall
under Sec. 1, par. (d), subpar. (1). Verily, had the legislature
intended a technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in specifically providing
for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in
relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in
subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of
the law, the pattern of overt or criminal acts is directed towards a
common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there
must either be an 'overall unlawful scheme' or 'conspiracy' to
achieve said common goal. As commonly understood, the term
'overall unlawful scheme' indicates a 'general plan of action or
method' which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid common goal. In
the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or
criminal acts must form part of a conspiracy to attain a common
goal.
Hence, it cannot plausibly be contended that the law does not give
a fair warning and sufficient notice of what it seeks to penalize.
Under the circumstances, petitioner's reliance on the "void-forvagueness" doctrine is manifestly misplaced. The doctrine has
been formulated in various ways, but is most commonly stated to
the effect that a statute establishing a criminal offense must define

PALISOC & SARMIENTO

the offense with sufficient definiteness that persons of ordinary

intelligence can understand what conduct is prohibited by the
statute. It can only be invoked against that specie of legislation that
is utterly vague on its face, i.e., that which cannot be clarified
either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two
(2) respects - it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the
Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but
which nonetheless specify a standard though defectively phrased;
or to those that are apparently ambiguous yet fairly applicable to
certain types of activities. The first may be "saved" by proper
construction, while no challenge may be mounted as against the
second whenever directed against such activities.11 With more
reason, the doctrine cannot be invoked where the assailed statute
is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practice.12 It must be stressed, however, that
the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly delineated. An
act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to
provide all the details in advance as in all other statutes.

271 | P a g e

Moreover, we agree with, hence we adopt, the observations of Mr.

Justice Vicente V. Mendoza during the deliberations of the Court
that the allegations that the Plunder Law is vague and overbroad
do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either
forbids or requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its meaning and
differ as to its application, violates the first essential of due process
of law."13 The overbreadth doctrine, on the other hand, decrees
that "a governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible "chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by
a statute drawn with narrow specificity."15 The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.

validity of penal statutes. As the U.S. Supreme Court put it, in an

opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment."16 In Broadrick v. Oklahoma,17 the Court ruled that
"claims of facial overbreadth have been entertained in cases
involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act
is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid."18 As for the vagueness doctrine, it is
said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others."19

This rationale does not apply to penal statutes. Criminal statutes

have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness

are analytical tools developed for testing "on their faces" statutes
in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or
other
situations
in
which
its
application
might
be
unconstitutional."20 As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated
[only] 'as applied' to a particular defendant."21 Consequently,
there is no basis for petitioner's claim that this Court review the
Anti-Plunder Law on its face and in its entirety.

The overbreadth and vagueness doctrines then have special

application only to free speech cases. They are inapt for testing the

Indeed, "on its face" invalidation of statutes results in striking them

down entirely on the ground that they might be applied to parties

PALISOC & SARMIENTO

272 | P a g e

not before the Court whose activities are constitutionally

protected.22 It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions
to be made without concrete factual settings and in sterile abstract
contexts.23 But, as the U.S. Supreme Court pointed out in Younger
v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort,"25 and is generally
disfavored.26 In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in
a case must be examined in the light of the conduct with which the
defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where
none exists, cannot be created by dissecting parts and words in the
statute to furnish support to critics who cavil at the want of
scientific precision in the law. Every provision of the law should be
construed in relation and with reference to every other part. To be
sure, it will take more than nitpicking to overturn the wellentrenched presumption of constitutionality and validity of the
Plunder Law. A fortiori, petitioner cannot feign ignorance of what
the Plunder Law is all about. Being one of the Senators who voted
for its passage, petitioner must be aware that the law was
extensively deliberated upon by the Senate and its appropriate

PALISOC & SARMIENTO

committees by reason of which he even registered his affirmative

vote with full knowledge of its legal implications and sound
constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be
mentioned if only to illustrate and emphasize the point that courts
are loathed to declare a statute void for uncertainty unless the law
itself is so imperfect and deficient in its details, and is susceptible
of no reasonable construction that will support and give it effect. In
that case, petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act for being vague. Petitioners posited, among others,
that the term "unwarranted" is highly imprecise and elastic with no
common law meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec. 3, par. (e),
violates due process in that it does not give fair warning or
sufficient notice of what it seeks to penalize. Petitioners further
argued that the Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits through
manifest partiality; (b) giving of "unwarranted" benefits through
evident bad faith; and, (c) giving of "unwarranted" benefits through
gross inexcusable negligence while in the discharge of their official
function and that their right to be informed of the nature and cause
of the accusation against them was violated because they were left
to guess which of the three (3) offenses, if not all, they were being
charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of
The Anti-Graft and Corrupt Practices Act does not suffer from the
constitutional defect of vagueness. The phrases "manifest
partiality," "evident bad faith," and "gross and inexcusable
negligence" merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute may be
committed, and the use of all these phrases in the same
Information does not mean that the indictment charges three (3)
distinct offenses.

273 | P a g e

The word 'unwarranted' is not uncertain. It seems lacking adequate

or official support; unjustified; unauthorized (Webster, Third
International Dictionary, p. 2514); or without justification or
adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of
Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases,
Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part,
p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public
officer in:
x x x or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence, x x x (Section 3
[e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted
penal provisions penalize is the act of a public officer, in the
discharge of his official, administrative or judicial functions, in
giving any private party benefits, advantage or preference which is
unjustified, unauthorized or without justification or adequate
reason, through manifest partiality, evident bad faith or gross
inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e),
of The Anti-Graft and Corrupt Practices Act, which was understood
in its primary and general acceptation. Consequently, in that case,
petitioners' objection thereto was held inadequate to declare the
section unconstitutional.
On the second issue, petitioner advances the highly stretched
theory that Sec. 4 of the Plunder Law circumvents the immutable
obligation of the prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it requires

PALISOC & SARMIENTO

only proof of a pattern of overt or criminal acts showing unlawful

scheme or conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal
act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it
being sufficient to establish beyond reasonable doubt a pattern of
overt or criminal acts indicative of the overall unlawful scheme or
conspiracy.
The running fault in this reasoning is obvious even to the simplistic
mind. In a criminal prosecution for plunder, as in all other crimes,
the accused always has in his favor the presumption of innocence
which is guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond reasonable doubt that
culpability lies, the accused is entitled to an acquittal.29 The use of
the "reasonable doubt" standard is indispensable to command the
respect and confidence of the community in the application of
criminal law. It is critical that the moral force of criminal law be not
diluted by a standard of proof that leaves people in doubt whether
innocent men are being condemned. It is also important in our free
society that every individual going about his ordinary affairs has
confidence that his government cannot adjudge him guilty of a
criminal offense without convincing a proper factfinder of his guilt
with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional law as it
gives life to the Due Process Clause which protects the accused
against conviction except upon proof beyond reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.30 The following exchanges between Rep. Rodolfo Albano
and Rep. Pablo Garcia on this score during the deliberations in the
floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON
RA 7080, 9 October 1990

274 | P a g e

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal

law that what is alleged in the information must be proven beyond
reasonable doubt. If we will prove only one act and find him guilty
of the other acts enumerated in the information, does that not work
against the right of the accused especially so if the amount
committed, say, by falsification is less than P100 million, but the
totality of the crime committed is P100 million since there is
malversation, bribery, falsification of public document, coercion,
theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to
be proved beyond reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an enumeration of the
things taken by the robber in the information three pairs of pants,
pieces of jewelry. These need not be proved beyond reasonable
doubt, but these will not prevent the conviction of a crime for which
he was charged just because, say, instead of 3 pairs of diamond
earrings the prosecution proved two. Now, what is required to be
proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that
in the crime of plunder the totality of the amount is very important,
I feel that such a series of overt criminal acts has to be taken singly.
For instance, in the act of bribery, he was able to accumulate only
P50,000 and in the crime of extortion, he was only able to
accumulate P1 million. Now, when we add the totality of the other
acts as required under this bill through the interpretation on the
rule of evidence, it is just one single act, so how can we now
convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving
an essential element of the crime, there is a need to prove that
element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is P100 million.
Now, in a series of defalcations and other acts of corruption in the
enumeration the total amount would be P110 or P120 million, but
there are certain acts that could not be proved, so, we will sum up

PALISOC & SARMIENTO

the amounts involved in those transactions which were proved.

Now, if the amount involved in these transactions, proved beyond
reasonable doubt, is P100 million, then there is a crime of plunder
(underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of
plunder. The burden still remains with the prosecution to prove
beyond any iota of doubt every fact or element necessary to
constitute the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception of the
import of that provision. What the prosecution needs to prove
beyond reasonable doubt is only a number of acts sufficient to form
a combination or series which would constitute a pattern and
involving an amount of at least P50,000,000.00. There is no need to
prove each and every other act alleged in the Information to have
been committed by the accused in furtherance of the overall
unlawful scheme or conspiracy to amass, accumulate or acquire illgotten wealth. To illustrate, supposing that the accused is charged
in an Information for plunder with having committed fifty (50) raids
on the public treasury. The prosecution need not prove all these
fifty (50) raids, it being sufficient to prove by pattern at least two
(2) of the raids beyond reasonable doubt provided only that they
amounted to at least P50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the
logical conclusion that "pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy" inheres in the very
acts of accumulating, acquiring or amassing hidden wealth. Stated
otherwise, such pattern arises where the prosecution is able to
prove beyond reasonable doubt the predicate acts as defined in
Sec. 1, par. (d). Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with reason and
common sense. There would be no other explanation for a
combination or series of overt or criminal acts to stash
P50,000,000.00 or more, than "a scheme or conspiracy to amass,

275 | P a g e

accumulate or acquire ill gotten wealth." The prosecution is

therefore not required to make a deliberate and conscious effort to
prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec.
4 is his submission that "pattern" is "a very important element of
the crime of plunder;" and that Sec. 4 is "two pronged, (as) it
contains a rule of evidence and a substantive element of the
crime," such that without it the accused cannot be convicted of
plunder -

the crime of plunder. So, there is no way by which we can avoid

Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt
insofar as the predicate crimes charged are concerned that you do
not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a
very important element of the crime of plunder and that cannot be
avoided by the prosecution.32

JUSTICE BELLOSILLO: In other words, cannot an accused be

convicted under the Plunder Law without applying Section 4 on the
Rule of Evidence if there is proof beyond reasonable doubt of the
commission of the acts complained of?

We do not subscribe to petitioner's stand. Primarily, all the essential

elements of plunder can be culled and understood from its
definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is
not one of them. Moreover, the epigraph and opening clause of
Sec. 4 is clear and unequivocal:

ATTY. AGABIN: In that case he can be convicted of individual crimes

enumerated in the Revised Penal Code, but not plunder.

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of

plunder x x x x

JUSTICE BELLOSILLO: In other words, if all the elements of the

crime are proved beyond reasonable doubt without applying
Section 4, can you not have a conviction under the Plunder Law?

It purports to do no more than prescribe a rule of procedure for the

prosecution of a criminal case for plunder. Being a purely
procedural measure, Sec. 4 does not define or establish any
substantive right in favor of the accused but only operates in
furtherance of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec. 4, a
conviction for plunder may be had, for what is crucial for the
prosecution is to present sufficient evidence to engender that moral
certitude exacted by the fundamental law to prove the guilt of the
accused beyond reasonable doubt. Thus, even granting for the sake
of argument that Sec. 4 is flawed and vitiated for the reasons
advanced by petitioner, it may simply be severed from the rest of
the provisions without necessarily resulting in the demise of the
law; after all, the existing rules on evidence can supplant Sec. 4
more than enough. Besides, Sec. 7 of RA 7080 provides for a
separability clause -

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec.
4 in convicting an accused charged for violation of the Plunder
Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays
down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section
4 when there is proof beyond reasonable doubt on the acts
charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of

PALISOC & SARMIENTO

Sec. 7. Separability of Provisions. - If any provisions of this Act or

the application thereof to any person or circumstance is held

276 | P a g e

invalid, the remaining provisions of this Act and the application of

such provisions to other persons or circumstances shall not be
affected thereby.
Implicit in the foregoing section is that to avoid the whole act from
being declared invalid as a result of the nullity of some of its
provisions, assuming that to be the case although it is not really so,
all the provisions thereof should accordingly be treated
independently of each other, especially if by doing so, the
objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza
that plunder is a malum in se which requires proof of criminal
intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It
is noteworthy that the amended information alleges that the crime
of plunder was committed "willfully, unlawfully and criminally." It
thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the
requirement of mens rea and that is the reason he claims the
statute is void, petitioner cites the following remarks of Senator
Taada made during the deliberation on S.B. No. 733:
SENATOR TAADA . . . And the evidence that will be required to
convict him would not be evidence for each and every individual
criminal act but only evidence sufficient to establish the conspiracy
or scheme to commit this crime of plunder.33
However, Senator Taada was discussing 4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it
is contained in Section 4, Rule of Evidence, which, in the
Gentleman's view, would provide for a speedier and faster process
of attending to this kind of cases?

PALISOC & SARMIENTO

SENATOR TAADA: Yes, Mr. President . . .34

Senator Taada was only saying that where the charge is
conspiracy to commit plunder, the prosecution need not prove each
and every criminal act done to further the scheme or conspiracy, it
being enough if it proves beyond reasonable doubt a pattern of
overt or ciminal acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern are
concerned, however, the elements of the crime must be proved and
the requisite mens rea must be shown.
Indeed, 2 provides that Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of
penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since
the degree of responsibility of the offender is determined by his
criminal intent. It is true that 2 refers to "any person who
participates with the said public officer in the commission of an
offense contributing to the crime of plunder." There is no reason to
believe, however, that it does not apply as well to the public officer
as principal in the crime. As Justice Holmes said: "We agree to all
the generalities about not supplying criminal laws with what they
omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous
crimes punishable by reclusion perpetua to death. Other heinous
crimes are punished with death as a straight penalty in R.A. No.

277 | P a g e

7659. Referring to these groups of heinous crimes, this Court held

in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that
are, by their very nature, despicable, either because life was
callously taken or the victim is treated like an animal and utterly
dehumanized as to completely disrupt the normal course of his or
her growth as a human being . . . . Seen in this light, the capital
crimes of kidnapping and serious illegal detention for ransom
resulting in the death of the victim or the victim is raped, tortured,
or subjected to dehumanizing acts; destructive arson resulting in
death; and drug offenses involving minors or resulting in the death
of the victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or serious
physical injuries were inflicted on the victim or threats to kill him
were made or the victim is a minor, robbery with homicide, rape or
intentional mutilation, destructive arson, and carnapping where the
owner, driver or occupant of the carnapped vehicle is killed or
raped, which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the
scheme of the larger socio-political and economic context in which
the state finds itself to be struggling to develop and provide for its
poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished
the population, the Philippine Government must muster the political
will to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. [With the
government] terribly lacking the money to provide even the most
basic services to its people, any form of misappropriation or
misapplication of government funds translates to an actual threat
to the very existence of government, and in turn, the very survival
of the people it governs over. Viewed in this context, no less

PALISOC & SARMIENTO

heinous are the effects and repercussions of crimes like qualified

bribery, destructive arson resulting in death, and drug offenses
involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and
damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a
heinous offense implies that it is a malum in se. For when the acts
punished are inherently immoral or inherently wrong, they are mala
in se37 and it does not matter that such acts are punished in a
special law, especially since in the case of plunder the predicate
crimes are mainly mala in se. Indeed, it would be absurd to treat
prosecutions for plunder as though they are mere prosecutions for
violations of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the
amendatory law of RA 7080, on constitutional grounds. Suffice it to
say however that it is now too late in the day for him to resurrect
this long dead issue, the same having been eternally consigned by
People v. Echegaray38 to the archives of jurisprudential history. The
declaration of this Court therein that RA 7659 is constitutionally
valid stands as a declaration of the State, and becomes, by
necessary effect, assimilated in the Constitution now as an integral
part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very
foundation. The anatomy of graft and corruption has become more
elaborate in the corridors of time as unscrupulous people
relentlessly contrive more and more ingenious ways to bilk the
coffers of the government. Drastic and radical measures are
imperative to fight the increasingly sophisticated, extraordinarily
methodical and economically catastrophic looting of the national
treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale corruption which, if
left unchecked, will spread like a malignant tumor and ultimately

278 | P a g e

consume the moral and institutional fiber of our nation. The Plunder
Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against
the avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of
this nation, few issues of national importance can equal the amount
of interest and passion generated by petitioner's ignominious fall
from the highest office, and his eventual prosecution and trial
under a virginal statute. This continuing saga has driven a wedge of
dissension among our people that may linger for a long time. Only
by responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in the
midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise
known as the Plunder Law, as amended by RA 7659,
is CONSTITUTIONAL. Consequently, the petition to declare the
law unconstitutional is DISMISSED for lack of merit.
SO ORDERED.

PALISOC & SARMIENTO

279 | P a g e

CENTRAL BANK (now Bangko Sentral ng Pilipinas)

EMPLOYEES ASSOCIATION, INC., Petitioner, versus BANGKO
SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY,
Respondents.
G.R. No. 148208 | 2004-12-15
DECISION
PUNO,

J.:

Can a provision of law, initially valid, become subsequently

unconstitutional, on the ground that its continued operation would
violate the equal protection of the law? We hold that with the
passage of the subsequent laws amending the charter of seven (7)
other governmental financial institutions (GFIs), the continued
operation of the last proviso of Section 15(c), Article II of Republic
Act (R.A.) No. 7653, constitutes invidious discrimination on the
2,994 rank-and-file employees of the Bangko Sentral ng Pilipinas
(BSP).
I.
The Case
First the facts.
On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took
effect. It abolished the old Central Bank of the Philippines, and
created
a
new
BSP.
On June 8, 2001, almost eight years after the effectivity of R.A. No.
7653, petitioner Central Bank (now BSP) Employees Association,
Inc., filed a petition for prohibition against BSP and the Executive
Secretary of the Office of the President, to restrain respondents
from further implementing the last proviso in Section 15(c), Article
II of R.A. No. 7653, on the ground that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Section 15. Exercise of Authority - In the exercise of its authority,
the Monetary Board shall:

accordance

with

sound

principles

of

management.

A compensation structure, based on job evaluation studies and

wage surveys and subject to the Board's approval, shall be
instituted as an integral component of the Bangko Sentral's human
resource development program: Provided, That the Monetary Board
shall make its own system conform as closely as possible with the
principles provided for under Republic Act No. 6758 [Salary
Standardization Act]. Provided, however, That compensation and
wage structure of employees whose positions fall under salary
grade 19 and below shall be in accordance with the rates
prescribed under Republic Act No. 6758. [emphasis supplied]

The thrust of petitioner's challenge is that the above proviso makes

an unconstitutional cut between two classes of employees in the
BSP, viz: (1) the BSP officers or those exempted from the coverage
of the Salary Standardization Law (SSL) (exempt class); and (2) the
rank-and-file (Salary Grade [SG] 19 and below), or those not
exempted from the coverage of the SSL (non-exempt class). It is
contended that this classification is "a classic case of class
legislation," allegedly not based on substantial distinctions which
make real differences, but solely on the SG of the BSP personnel's
position. Petitioner also claims that it is not germane to the
purposes of Section 15(c), Article II of R.A. No. 7653, the most
important of which is to establish professionalism and excellence at
all levels in the BSP.[1] Petitioner offers the following sub-set of
arguments:
a. the legislative history of R.A. No. 7653 shows that the questioned
proviso does not appear in the original and amended versions of
House Bill No. 7037, nor in the original version of Senate Bill No.
1235; [2]

xxx

b. subjecting the compensation of the BSP rank-and-file employees

to the rate prescribed by the SSL actually defeats the purpose of
the law[3] of establishing professionalism and excellence at all
levels
in
the
BSP;
[4]
(emphasis
supplied)

(c) establish a human resource management system which shall

govern the selection, hiring, appointment, transfer, promotion, or
dismissal of all personnel. Such system shall aim to establish
professionalism and excellence at all levels of the Bangko Sentral in

c. the assailed proviso was the product of amendments introduced

during the deliberation of Senate Bill No. 1235, without showing its
relevance to the objectives of the law, and even admitted by one
senator as discriminatory against low-salaried employees of the
BSP;[5]

xxx

PALISOC & SARMIENTO

xxx

280 | P a g e

d. GSIS, LBP, DBP and SSS personnel are all from the coverage of
the SSL; thus within the class of rank-and-file personnel of
government financial institutions (GFIs), the BSP rank-and-file are
also
discriminated
upon;[6]
and
e. the assailed proviso has caused the demoralization among the
BSP rank-and-file and resulted in the gross disparity between their
compensation and that of the BSP officers'.[7]
In sum, petitioner posits that the classification is not reasonable but
arbitrary and capricious, and violates the equal protection clause of
the Constitution.[8] Petitioner also stresses: (a) that R.A. No. 7653
has a separability clause, which will allow the declaration of the
unconstitutionality of the proviso in question without affecting the
other provisions; and (b) the urgency and propriety of the petition,
as some 2,994 BSP rank-and-file employees have been prejudiced
since 1994 when the proviso was implemented. Petitioner
concludes that: (1) since the inequitable proviso has no force and
effect of law, respondents' implementation of such amounts to lack
of jurisdiction; and (2) it has no appeal nor any other plain, speedy
and adequate remedy in the ordinary course except through this
petition for prohibition, which this Court should take cognizance of,
considering the transcendental importance of the legal issue
involved.[9]
Respondent BSP, in its comment,[10] contends that the provision
does not violate the equal protection clause and can stand the
constitutional test, provided it is construed in harmony with other
provisions of the same law, such as "fiscal and administrative
autonomy of BSP," and the mandate of the Monetary Board to
"establish professionalism and excellence at all levels in
accordance with sound principles of management."
The Solicitor General, on behalf of respondent Executive Secretary,
also defends the validity of the provision. Quite simplistically, he
argues that the classification is based on actual and real
differentiation, even as it adheres to the enunciated policy of R.A.
No. 7653 to establish professionalism and excellence within the BSP
subject to prevailing laws and policies of the national government.
[11]
II.
Issue
Thus, the sole - albeit significant - issue to be resolved in this case

PALISOC & SARMIENTO

is whether the last paragraph of Section 15(c), Article II of R.A. No.

7653, runs afoul of the constitutional mandate that "No person
shall be. . . denied the equal protection of the laws."[12]
III.
Ruling
A. UNDER THE PRESENT STANDARDS OF EQUAL PROTECTION,
SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID.
Jurisprudential standards for equal protection challenges
indubitably show that the classification created by the questioned
proviso, on its face and in its operation, bears no constitutional
infirmities.
It is settled in constitutional law that the "equal protection" clause
does not prevent the Legislature from establishing classes of
individuals or objects upon which different rules shall operate - so
long as the classification is not unreasonable. As held in Victoriano
v. Elizalde Rope Workers' Union,[13] and reiterated in a long line of
cases:[14]
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed
or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;

281 | P a g e

and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary.

approved by the executive, is presumed to be within constitutional

limitations.[22] To justify the nullification of a law, there must be a
clear and unequivocal breach of the Constitution, not a doubtful
and equivocal breach.[23]

In the exercise of its power to make classifications for the purpose

of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked
differences of things or in their relation. Neither is it necessary that
the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and
legislation is addressed to evils as they may appear. (citations
omitted)

B. THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES OF GFIs FROM
THE SSL - RENDERS THE CONTINUED APPLICATION OF THE
CHALLENGED PROVISION A VIOLATION OF THE EQUAL PROTECTION
CLAUSE.

Congress is allowed a wide leeway in providing for a valid

classification.[15] The equal protection clause is not infringed by
legislation which applies only to those persons falling within a
specified class.[16] If the groupings are characterized by
substantial distinctions that make real differences, one class may
be treated and regulated differently from another.[17] The
classification must also be germane to the purpose of the law and
must apply to all those belonging to the same class.[18]
In the case at bar, it is clear in the legislative deliberations that the
exemption of officers (SG 20 and above) from the SSL was intended
to address the BSP's lack of competitiveness in terms of attracting
competent officers and executives. It was not intended to
discriminate against the rank-and-file. If the end-result did in fact
lead to a disparity of treatment between the officers and the rankand-file in terms of salaries and benefits, the discrimination or
distinction has a rational basis and is not palpably, purely, and
entirely arbitrary in the legislative sense. [19]
That the provision was a product of amendments introduced during
the deliberation of the Senate Bill does not detract from its validity.
As early as 1947 and reiterated in subsequent cases,[20] this Court
has subscribed to the conclusiveness of an enrolled bill to refuse
invalidating a provision of law, on the ground that the bill from
which it originated contained no such provision and was merely
inserted by the bicameral conference committee of both Houses.
Moreover, it is a fundamental and familiar teaching that all
reasonable doubts should be resolved in favor of the
constitutionality of a statute.[21] An act of the legislature,

PALISOC & SARMIENTO

While R.A. No. 7653 started as a valid measure well within the
legislature's power, we hold that the enactment of subsequent laws
exempting all rank-and-file employees of other GFIs leeched all
validity
out
of
the
challenged
proviso.
1. The concept of relative constitutionality.
The constitutionality of a statute cannot, in every instance, be
determined by a mere comparison of its provisions with applicable
provisions of the Constitution, since the statute may be
constitutionally valid as applied to one set of facts and invalid in its
application to another.[24]
A statute valid at one time may become void at another time
because of altered circumstances.[25] Thus, if a statute in its
practical operation becomes arbitrary or confiscatory, its validity,
even though affirmed by a former adjudication, is open to inquiry
and investigation in the light of changed conditions.[26]
Demonstrative of this doctrine is Vernon Park Realty v. City of
Mount Vernon,[27] where the Court of Appeals of New York declared
as unreasonable and arbitrary a zoning ordinance which placed the
plaintiff's property in a residential district, although it was located
in the center of a business area. Later amendments to the
ordinance then prohibited the use of the property except for
parking and storage of automobiles, and service station within a
parking area. The Court found the ordinance to constitute an
invasion of property rights which was contrary to constitutional due
process. It ruled:
While the common council has the unquestioned right to enact
zoning laws respecting the use of property in accordance with a
well-considered and comprehensive plan designed to promote
public health, safety and general welfare, such power is subject to
the constitutional limitation that it may not be exerted arbitrarily or
unreasonably and this is so whenever the zoning ordinance

282 | P a g e

precludes the use of the property for any purpose for which it is
reasonably adapted. By the same token, an ordinance valid when
adopted will nevertheless be stricken down as invalid when, at a
later time, its operation under changed conditions proves
confiscatory such, for instance, as when the greater part of its
value is destroyed, for which the courts will afford relief in an
appropriate case.[28] (citations omitted, emphasis supplied)
In the Philippine setting, this Court declared the continued
enforcement of a valid law as unconstitutional as a consequence of
significant changes in circumstances. Rutter v. Esteban[29] upheld
the constitutionality of the moratorium law - its enactment and
operation being a valid exercise by the State of its police power[30]
- but also ruled that the continued enforcement of the otherwise
valid law would be unreasonable and oppressive. It noted the
subsequent changes in the country's business, industry and
agriculture. Thus, the law was set aside because its continued
operation would be grossly discriminatory and lead to the
oppression of the creditors. The landmark ruling states:[31]
The question now to be determined is, is the period of eight (8)
years which Republic Act No. 342 grants to debtors of a monetary
obligation contracted before the last global war and who is a war
sufferer with a claim duly approved by the Philippine War Damage
Commission reasonable under the present circumstances?
It should be noted that Republic Act No. 342 only extends relief to
debtors of prewar obligations who suffered from the ravages of the
last war and who filed a claim for their losses with the Philippine
War Damage Commission. It is therein provided that said obligation
shall not be due and demandable for a period of eight (8) years
from and after settlement of the claim filed by the debtor with said
Commission. The purpose of the law is to afford to prewar debtors
an opportunity to rehabilitate themselves by giving them a
reasonable time within which to pay their prewar debts so as to
prevent them from being victimized by their creditors. While it is
admitted in said law that since liberation conditions have gradually
returned to normal, this is not so with regard to those who have
suffered the ravages of war and so it was therein declared as a
policy that as to them the debt moratorium should be continued in
force (Section 1).
But we should not lose sight of the fact that these obligations had
been pending since 1945 as a result of the issuance of Executive
Orders Nos. 25 and 32 and at present their enforcement is still
inhibited because of the enactment of Republic Act No. 342 and
would continue to be unenforceable during the eight-year period

PALISOC & SARMIENTO

granted to prewar debtors to afford them an opportunity to

rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years
before they could effect a liquidation of their investment dating as
far back as 1941. This period seems to us unreasonable, if not
oppressive. While the purpose of Congress is plausible, and should
be commended, the relief accorded works injustice to creditors who
are practically left at the mercy of the debtors. Their hope to effect
collection becomes extremely remote, more so if the credits are
unsecured. And the injustice is more patent when, under the law,
the debtor is not even required to pay interest during the operation
of the relief, unlike similar statutes in the United States.
xxx

xxx

xxx

In the face of the foregoing observations, and consistent with what

we believe to be as the only course dictated by justice, fairness and
righteousness, we feel that the only way open to us under the
present circumstances is to declare that the continued operation
and enforcement of Republic Act No. 342 at the present time is
unreasonable and oppressive, and should not be prolonged a
minute longer, and, therefore, the same should be declared null
and void and without effect. (emphasis supplied, citations omitted)
2. Applicability of the equal protection clause.
In the realm of equal protection, the U.S. case of Atlantic Coast Line
R. Co. v. Ivey[32] is illuminating. The Supreme Court of Florida ruled
against the continued application of statutes authorizing the
recovery of double damages plus attorney's fees against railroad
companies, for animals killed on unfenced railroad right of way
without proof of negligence. Competitive motor carriers, though
creating greater hazards, were not subjected to similar liability
because they were not yet in existence when the statutes were
enacted. The Court ruled that the statutes became invalid as
denying "equal protection of the law," in view of changed
conditions
since
their
enactment.
In another U.S. case, Louisville & N.R. Co. v. Faulkner,[33] the Court
of Appeals of Kentucky declared unconstitutional a provision of a
statute which imposed a duty upon a railroad company of proving
that it was free from negligence in the killing or injury of cattle by
its engine or cars. This, notwithstanding that the constitutionality of
the statute, enacted in 1893, had been previously sustained. Ruled
the Court:
The constitutionality of such legislation was sustained because it

283 | P a g e

applied to all similar corporations and had for its object the safety
of persons on a train and the protection of property.... Of course,
there were no automobiles in those days. The subsequent
inauguration and development of transportation by motor vehicles
on the public highways by common carriers of freight and
passengers created even greater risks to the safety of occupants of
the vehicles and of danger of injury and death of domestic animals.
Yet, under the law the operators of that mode of competitive
transportation are not subject to the same extraordinary legal
responsibility for killing such animals on the public roads as are
railroad companies for killing them on their private rights of way.
The Supreme Court, speaking through Justice Brandeis in Nashville,
C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79
L.Ed. 949, stated, "A statute valid when enacted may become
invalid by change in the conditions to which it is applied. The police
power is subject to the constitutional limitation that it may not be
exerted arbitrarily or unreasonably." A number of prior opinions of
that court are cited in support of the statement. The State of
Florida for many years had a statute, F.S.A. 356.01 et seq.
imposing extraordinary and special duties upon railroad companies,
among which was that a railroad company was liable for double
damages and an attorney's fee for killing livestock by a train
without the owner having to prove any act of negligence on the
part of the carrier in the operation of its train. In Atlantic Coast Line
Railroad Co. v. Ivey, it was held that the changed conditions
brought about by motor vehicle transportation rendered the statute
unconstitutional since if a common carrier by motor vehicle had
killed the same animal, the owner would have been required to
prove negligence in the operation of its equipment. Said the court,
"This certainly is not equal protection of the law."[34] (emphasis
supplied)
Echoes of these rulings resonate in our case law, viz:
[C]ourts are not confined to the language of the statute under
challenge in determining whether that statute has any
discriminatory effect. A statute nondiscriminatory on its face may
be grossly discriminatory in its operation. Though the law itself be
fair on its face and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and unequal
hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights,
the denial of equal justice is still within the prohibition of the
Constitution.[35] (emphasis supplied, citations omitted)

[W]e see no difference between a law which denies equal

protection and a law which permits of such denial. A law may
appear to be fair on its face and impartial in appearance, yet, if it
permits of unjust and illegal discrimination, it is within the
constitutional prohibition..... In other words, statutes may be
adjudged unconstitutional because of their effect in operation.... If
a law has the effect of denying the equal protection of the law it is
unconstitutional. ....[36] (emphasis supplied, citations omitted
3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 +
8763 + 9302 = consequential unconstitutionality of challenged
proviso.
According to petitioner, the last proviso of Section 15(c), Article II of
R.A. No. 7653 is also violative of the equal protection clause
because after it was enacted, the charters of the GSIS, LBP, DBP
and SSS were also amended, but the personnel of the latter GFIs
were all exempted from the coverage of the SSL.[37] Thus, within
the class of rank-and-file personnel of GFIs, the BSP rank-and-file
are also discriminated upon.
Indeed, we take judicial notice that after the new BSP charter was
enacted in 1993, Congress also undertook the amendment of the
charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from
1995
to
2004,
viz:
1. R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);
2. R.A. No. 8282 (1997) for Social Security System (SSS);
3. R.A. No. 8289 (1997) for Small Business Guarantee and Finance
Corporation, (SBGFC);
4. R.A. No. 8291 (1997) for Government Service Insurance System
(GSIS);
5. R.A. No. 8523 (1998) for Development Bank of the Philippines
(DBP);
6. R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC);[38]
and
7. R.A. No. 9302 (2004) for Philippine Deposit Insurance Corporation
(PDIC).
It is noteworthy, as petitioner points out, that the subsequent
charters of the seven other GFIs share this common proviso: a

PALISOC & SARMIENTO

284 | P a g e

blanket exemption of all their employees from the coverage of the

SSL,
expressly
or
impliedly,
as
illustrated
below:
1. LBP (R.A. No. 7907)

and regulations: Provided, finally, That the SSS shall be exempt

from the provisions of Republic Act No. 6758 and Republic Act No.
7430. (emphasis supplied)
3. SBGFC (R.A. No. 8289)

Section 10. Section 90 of [R.A. No. 3844] is hereby amended to

read
as
follows:

Section 8. [Amending R.A. No. 6977, Section 11]:

Section 90. Personnel.

xxx xxx xxx

xxx

xxx

xxx

The Small Business Guarantee and Finance Corporation shall:

All positions in the Bank shall be governed by a compensation,

position classification system and qualification standards approved
by the Bank's Board of Directors based on a comprehensive job
analysis and audit of actual duties and responsibilities. The
compensation plan shall be comparable with the prevailing
compensation plans in the private sector and shall be subject to
periodic review by the Board no more than once every two (2)
years without prejudice to yearly merit reviews or increases based
on productivity and profitability. The Bank shall therefore be exempt
from existing laws, rules and regulations on compensation, position
classification and qualification standards. It shall however endeavor
to make its system conform as closely as possible with the
principles under Republic Act No. 6758. (emphasis supplied)

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

2. SSS (R.A. No. 8282)

Sec. 43. Powers and Functions of the Board of Trustees. - The Board
of Trustees shall have the following powers and functions:

Section

1.

[Amending

R.A.

No.

1161,

Section

3(c)]:

xxx xxx xxx

(c)The Commission, upon the recommendation of the SSS
President, shall appoint an actuary and such other personnel as
may [be] deemed necessary; fix their reasonable compensation,
allowances and other benefits; prescribe their duties and establish
such methods and procedures as may be necessary to insure the
efficient, honest and economical administration of the provisions
and purposes of this Act: Provided, however, That the personnel of
the SSS below the rank of Vice President shall be appointed by the
SSS President: Provided, further, That the personnel appointed by
the SSS President, except those below the rank of assistant
manager, shall be subject to the confirmation by the Commission;
Provided further, That the personnel of the SSS shall be selected
only from civil service eligibles and be subject to civil service rules

PALISOC & SARMIENTO

(e) notwithstanding the provisions of Republic Act No. 6758, and

Compensation Circular No. 10, series of 1989 issued by the
Department of Budget and Management, the Board of Directors of
SBGFC shall have the authority to extend to the employees and
personnel thereof the allowance and fringe benefits similar to those
extended to and currently enjoyed by the employees and personnel
of other government financial institutions. (emphases supplied)
4. GSIS (R.A. No. 8291)
Section 1. [Amending Section 43(d)].

xxx xxx xxx

(d) upon the recommendation of the President and General
Manager, to approve the GSIS' organizational and administrative
structures and staffing pattern, and to establish, fix, review, revise
and adjust the appropriate compensation package for the officers
and employees of the GSIS with reasonable allowances, incentives,
bonuses, privileges and other benefits as may be necessary or
proper for the effective management, operation and administration
of the GSIS, which shall be exempt from Republic Act No. 6758,
otherwise known as the Salary Standardization Law and Republic
Act No. 7430, otherwise known as the Attrition Law. (emphasis
supplied)
xxx xxx xxx

285 | P a g e

5. DBP (R.A. No. 8523)

7. PDIC (R.A. No. 9302)

Section 6. [Amending E.O. No. 81, Section 13]:

Section 2. Section 2 of [Republic Act No. 3591, as amended] is

hereby further amended to read:

Section 13. Other Officers and Employees. - The Board of Directors

shall provide for an organization and staff of officers and employees
of the Bank and upon recommendation of the President of the
Bank, fix their remunerations and other emoluments. All positions
in the Bank shall be governed by the compensation, position
classification system and qualification standards approved by the
Board of Directors based on a comprehensive job analysis of actual
duties and responsibilities. The compensation plan shall be
comparable with the prevailing compensation plans in the private
sector and shall be subject to periodic review by the Board of
Directors once every two (2) years, without prejudice to yearly
merit or increases based on the Bank's productivity and
profitability. The Bank shall, therefore, be exempt from existing
laws, rules, and regulations on compensation, position classification
and qualification standards. The Bank shall however, endeavor to
make its system conform as closely as possible with the principles
under Compensation and Position Classification Act of 1989
(Republic Act No. 6758, as amended). (emphasis supplied)
6. HGC (R.A. No. 8763)
Section 9. Powers, Functions and Duties of the Board of Directors. The Board shall have the following powers, functions and duties:
xxx xxx xxx
(e) To create offices or positions necessary for the efficient
management, operation and administration of the Corporation:
Provided, That all positions in the Home Guaranty Corporation
(HGC) shall be governed by a compensation and position
classification system and qualifications standards approved by the
Corporation's Board of Directors based on a comprehensive job
analysis and audit of actual duties and responsibilities: Provided,
further, That the compensation plan shall be comparable with the
prevailing compensation plans in the private sector and which shall
be exempt from Republic Act No. 6758, otherwise known as the
Salary Standardization Law, and from other laws, rules and
regulations on salaries and compensations; and to establish a
Provident Fund and determine the Corporation's and the
employee's contributions to the Fund; (emphasis supplied)
xxx xxx xxx

PALISOC & SARMIENTO

xxx

xxx

xxx

xxx

xxx

3.
xxx

A compensation structure, based on job evaluation studies and

wage surveys and subject to the Board's approval, shall be
instituted as an integral component of the Corporation's human
resource development program: Provided, That all positions in the
Corporation shall be governed by a compensation, position
classification system and qualification standards approved by the
Board based on a comprehensive job analysis and audit of actual
duties and responsibilities. The compensation plan shall be
comparable with the prevailing compensation plans of other
government financial institutions and shall be subject to review by
the Board no more than once every two (2) years without prejudice
to yearly merit reviews or increases based on productivity and
profitability. The Corporation shall therefore be exempt from
existing laws, rules and regulations on compensation, position
classification and qualification standards. It shall however endeavor
to make its system conform as closely as possible with the
principles under Republic Act No. 6758, as amended. (emphases
supplied)
Thus, eleven years after the amendment of the BSP charter, the
rank-and-file of seven other GFIs were granted the exemption that
was specifically denied to the rank-and-file of the BSP. And as if to
add insult to petitioner's injury, even the Securities and Exchange
Commission (SEC) was granted the same blanket exemption from
the SSL in 2000![39]
The prior view on the constitutionality of R.A. No. 7653 was
confined to an evaluation of its classification between the rank-andfile and the officers of the BSP, found reasonable because there
were substantial distinctions that made real differences between
the two classes.
The above-mentioned subsequent enactments, however, constitute
significant changes in circumstance that considerably alter the
reasonability of the continued operation of the last proviso of

286 | P a g e

Section 15(c), Article II of Republic Act No. 7653, thereby exposing

the proviso to more serious scrutiny. This time, the scrutiny relates
to the constitutionality of the classification - albeit made indirectly
as a consequence of the passage of eight other laws - between the
rank-and-file of the BSP and the seven other GFIs. The classification
must not only be reasonable, but must also apply equally to all
members of the class. The proviso may be fair on its face and
impartial in appearance but it cannot be grossly discriminatory in
its operation, so as practically to make unjust distinctions between
persons
who
are
without
differences.[40]
Stated differently, the second level of inquiry deals with the
following questions: Given that Congress chose to exempt other
GFIs (aside the BSP) from the coverage of the SSL, can the
exclusion of the rank-and-file employees of the BSP stand
constitutional scrutiny in the light of the fact that Congress did not
exclude the rank-and-file employees of the other GFIs? Is Congress'
power to classify so unbridled as to sanction unequal and
discriminatory treatment, simply because the inequity manifested
itself, not instantly through a single overt act, but gradually and
progressively, through seven separate acts of Congress? Is the right
to equal protection of the law bounded in time and space that: (a)
the right can only be invoked against a classification made directly
and deliberately, as opposed to a discrimination that arises
indirectly, or as a consequence of several other acts; and (b) is the
legal analysis confined to determining the validity within the
parameters of the statute or ordinance (where the inclusion or
exclusion is articulated), thereby proscribing any evaluation vis -vis the grouping, or the lack thereof, among several similar
enactments
made
over
a
period
of
time?
In this second level of scrutiny, the inequality of treatment cannot
be justified on the mere assertion that each exemption (granted to
the seven other GFIs) rests "on a policy determination by the
legislature." All legislative enactments necessarily rest on a policy
determination - even those that have been declared to contravene
the Constitution. Verily, if this could serve as a magic wand to
sustain the validity of a statute, then no due process and equal
protection challenges would ever prosper. There is nothing
inherently sacrosanct in a policy determination made by Congress
or by the Executive; it cannot run riot and overrun the ramparts of
protection
of
the
Constitution.
In fine, the "policy determination" argument may support the
inequality of treatment between the rank-and-file and the officers
of the BSP, but it cannot justify the inequality of treatment between
BSP rank-and-file and other GFIs' who are similarly situated. It fails

PALISOC & SARMIENTO

to appreciate that what is at issue in the second level of scrutiny is

not the declared policy of each law per se, but the oppressive
results of Congress' inconsistent and unequal policy towards the
BSP rank-and-file and those of the seven other GFIs. At bottom, the
second challenge to the constitutionality of Section 15(c), Article II
of Republic Act No. 7653 is premised precisely on the irrational
discriminatory policy adopted by Congress in its treatment of
persons similarly situated. In the field of equal protection, the
guarantee that "no person shall be ... denied the equal protection
of the laws" includes the prohibition against enacting laws that
allow invidious discrimination, directly or indirectly. If a law has the
effect of denying the equal protection of the law, or permits such
denial,
it
is
unconstitutional.[41]
It is against this standard that the disparate treatment of the BSP
rank-and-file from the other GFIs cannot stand judicial scrutiny. For
as regards the exemption from the coverage of the SSL, there exist
no substantial distinctions so as to differentiate, the BSP rank-andfile from the other rank-and-file of the seven GFIs. On the contrary,
our legal history shows that GFIs have long been recognized as
comprising one distinct class, separate from other governmental
entities.
Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it
as a State policy (1) to provide equal pay for substantially equal
work, and (2) to base differences in pay upon substantive
differences in duties and responsibilities, and qualification
requirements of the positions. P.D. No. 985 was passed to address
disparities in pay among similar or comparable positions which had
given rise to dissension among government employees. But even
then, GFIs and government-owned and/or controlled corporations
(GOCCs) were already identified as a distinct class among
government employees. Thus, Section 2 also provided, "[t]hat
notwithstanding a standardized salary system established for all
employees, additional financial incentives may be established by
government corporation and financial institutions for their
employees to be supported fully from their corporate funds and for
such technical positions as may be approved by the President in
critical government agencies."[42]
The same favored treatment is made for the GFIs and the GOCCs
under the SSL. Section 3(b) provides that one of the principles
governing the Compensation and Position Classification System of
the Government is that: "[b]asic compensation for all personnel in
the government and government-owned or controlled corporations
and financial institutions shall generally be comparable with those

287 | P a g e

in the private sector doing comparable work, and must be in

accordance with prevailing laws on minimum wages."
Thus, the BSP and all other GFIs and GOCCs were under the unified
Compensation and Position Classification System of the SSL,[43]
but rates of pay under the SSL were determined on the basis of,
among others, prevailing rates in the private sector for comparable
work. Notably, the Compensation and Position Classification System
was to be governed by the following principles: (a) just and
equitable wages, with the ratio of compensation between pay
distinctions maintained at equitable levels;[44] and (b) basic
compensation generally comparable with the private sector, in
accordance with prevailing laws on minimum wages.[45] Also, the
Department of Budget and Management was directed to use, as
guide for preparing the Index of Occupational Services, the
Benchmark Position Schedule, and the following factors:[46]
(1) the education and experience required to perform the duties
and responsibilities of the positions;
(2) the nature and complexity of the work to be performed;
(3) the kind of supervision received;
(4) mental and/or physical strain required in the completion of the
work;
(5) nature and extent of internal and external relationships;
(6) kind of supervision exercised;
(7) decision-making responsibility;
(8) responsibility for accuracy of records and reports;
(9) accountability for funds, properties and equipment; and
(10) hardship, hazard and personal risk involved in the job.
The Benchmark Position Schedule enumerates the position titles
that fall within Salary Grades 1 to 20.
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were
similarly situated in all aspects pertaining to compensation and
position classification, in consonance with Section 5, Article IX-B of
the
1997
Constitution.[47]

PALISOC & SARMIENTO

Then came the enactment of the amended charter of the BSP,

implicitly exempting the Monetary Board from the SSL by giving it
express authority to determine and institute its own compensation
and wage structure. However, employees whose positions fall
under SG 19 and below were specifically limited to the rates
prescribed under the SSL.
Subsequent amendments to the charters of other GFIs followed.
Significantly, each government financial institution (GFI) was not
only expressly authorized to determine and institute its own
compensation and wage structure, but also explicitly exempted without distinction as to salary grade or position - all employees of
the GFI from the SSL.
It has been proffered that legislative deliberations justify the grant
or withdrawal of exemption from the SSL, based on the perceived
need "to fulfill the mandate of the institution concerned
considering, among others, that: (1) the GOCC or GFI is essentially
proprietary in character; (2) the GOCC or GFI is in direct
competition with their [sic] counterparts in the private sector, not
only in terms of the provisions of goods or services, but also in
terms of hiring and retaining competent personnel; and (3) the
GOCC or GFI are or were [sic] experiencing difficulties filling up
plantilla positions with competent personnel and/or retaining these
personnel. The need for the scope of exemption necessarily varies
with the particular circumstances of each institution, and the
corresponding variance in the benefits received by the employees
is merely incidental."
The fragility of this argument is manifest. First, the BSP is the
central monetary authority,[48] and the banker of the government
and all its political subdivisions.[49] It has the sole power and
authority to issue currency;[50] provide policy directions in the
areas of money, banking, and credit; and supervise banks and
regulate finance companies and non-bank financial institutions
performing quasi-banking functions, including the exempted GFIs.
[51] Hence, the argument that the rank-and-file employees of the
seven GFIs were exempted because of the importance of their
institution's mandate cannot stand any more than an empty sack
can
stand.
Second, it is certainly misleading to say that "the need for the
scope of exemption necessarily varies with the particular
circumstances of each institution." Nowhere in the deliberations is
there a cogent basis for the exclusion of the BSP rank-and-file from
the exemption which was granted to the rank-and-file of the other
GFIs and the SEC. As point in fact, the BSP and the seven GFIs are

288 | P a g e

similarly situated in so far as Congress deemed it necessary for

these institutions to be exempted from the SSL. True, the SSLexemption of the BSP and the seven GFIs was granted in the
amended charters of each GFI, enacted separately and over a
period of time. But it bears emphasis that, while each GFI has a
mandate different and distinct from that of another, the
deliberations show that the raison d'tre of the SSL-exemption
was inextricably linked to and for the most part based on factors
common to the eight GFIs, i.e., (1) the pivotal role they play in the
economy; (2) the necessity of hiring and retaining qualified and
effective personnel to carry out the GFI's mandate; and (3) the
recognition that the compensation package of these GFIs is not
competitive, and fall substantially below industry standards.
Considering further that (a) the BSP was the first GFI granted SSL
exemption; and (b) the subsequent exemptions of other GFIs did
not distinguish between the officers and the rank-and-file; it is
patent that the classification made between the BSP rank-and-file
and those of the other seven GFIs was inadvertent, and NOT
intended, i.e., it was not based on any substantial distinction vis -vis the particular circumstances of each GFI. Moreover, the
exemption granted to two GFIs makes express reference to
allowance and fringe benefits similar to those extended to and
currently enjoyed by the employees and personnel of other GFIs,
[52] underscoring that GFIs are a particular class within the realm
of
government
entities.

to support the conclusion that rank-and-file employees of the BSP

may be lumped together with similar employees of the other
GOCCs for purposes of compensation, position classification and
qualification standards. The fact that certain persons have some
attributes in common does not automatically make them members
of the same class with respect to a legislative classification." Cited
is the ruling in Johnson v. Robinson:[54] "this finding of similarity
ignores that a common characteristic shared by beneficiaries and
nonbeneficiaries alike, is not sufficient to invalidate a statute when
other characteristics peculiar to only one group rationally explain
the statute's different treatment of the two groups."

It is precisely this unpremeditated discrepancy in treatment of the

rank-and-file of the BSP - made manifest and glaring with each and
every consequential grant of blanket exemption from the SSL to the
other GFIs - that cannot be rationalized or justified. Even more so,
when the SEC - which is not a GFI - was given leave to have a
compensation plan that "shall be comparable with the prevailing
compensation plan in the [BSP] and other [GFIs],"[53] then granted
a blanket exemption from the SSL, and its rank-and-file endowed a
more preferred treatment than the rank-and-file of the BSP.

xxx

The violation to the equal protection clause becomes even more

pronounced when we are faced with this undeniable truth: that if
Congress had enacted a law for the sole purpose of exempting the
eight GFIs from the coverage of the SSL, the exclusion of the BSP
rank-and-file employees would have been devoid of any substantial
or material basis. It bears no moment, therefore, that the unlawful
discrimination was not a direct result arising from one law. "Nemo
potest facere per alium quod non potest facere per directum." No
one is allowed to do indirectly what he is prohibited to do directly.
It has also been proffered that "similarities alone are not sufficient

PALISOC & SARMIENTO

The reference to Johnson is inapropos. In Johnson, the US Court

sustained the validity of the classification as there were
quantitative and qualitative distinctions, expressly recognized by
Congress, which formed a rational basis for the classification
limiting educational benefits to military service veterans as a
means of helping them readjust to civilian life. The Court listed the
peculiar characteristics as follows:
First, the disruption caused by military service is quantitatively
greater than that caused by alternative civilian service. A
conscientious objector performing alternative service is obligated to
work for two years. Service in the Armed Forces, on the other hand,
involves
a
six-year
commitment...
xxx

xxx

Second, the disruptions suffered by military veterans and

alternative service performers are qualitatively different. Military
veterans suffer a far greater loss of personal freedom during their
service careers. Uprooted from civilian life, the military veteran
becomes part of the military establishment, subject to its discipline
and potentially hazardous duty. Congress was acutely aware of the
peculiar disabilities caused by military service, in consequence of
which military servicemen have a special need for readjustment
benefits...[55] (citations omitted)
In the case at bar, it is precisely the fact that as regards the
exemption from the SSL, there are no characteristics peculiar only
to the seven GFIs or their rank-and-file so as to justify the
exemption which BSP rank-and-file employees were denied (not to
mention the anomaly of the SEC getting one). The distinction made
by the law is not only superficial,[56] but also arbitrary. It is not
based on substantial distinctions that make real differences
between the BSP rank-and-file and the seven other GFIs.

289 | P a g e

Moreover, the issue in this case is not - as the dissenting opinion of

Mme. Justice Carpio-Morales would put it - whether "being an
employee of a GOCC or GFI is reasonable and sufficient basis for
exemption" from R.A. No. 6758. It is Congress itself that
distinguished the GFIs from other government agencies, not once
but eight times, through the enactment of R.A. Nos. 7653, 7907,
8282, 8289, 8291, 8523, 8763, and 9302. These laws may have
created a "preferred sub-class within government employees," but
the present challenge is not directed at the wisdom of these laws.
Rather, it is a legal conundrum involving the exercise of legislative
power, the validity of which must be measured not only by looking
at the specific exercise in and by itself (R.A. No. 7653), but also as
to the legal effects brought about by seven separate exercises albeit indirectly and without intent.
Thus, even if petitioner had not alleged "a comparable change in
the factual milieu as regards the compensation, position
classification and qualification standards of the employees of the
BSP (whether of the executive level or of the rank-and-file) since
the enactment of the new Central Bank Act" is of no moment. In
GSIS v. Montesclaros,[57] this Court resolved the issue of
constitutionality notwithstanding that claimant had manifested that
she was no longer interested in pursuing the case, and even when
the constitutionality of the said provision was not squarely raised as
an issue, because the issue involved not only the claimant but also
others similarly situated and whose claims GSIS would also deny
based on the challenged proviso. The Court held that social justice
and public interest demanded the resolution of the constitutionality
of the proviso. And so it is with the challenged proviso in the case
at bar.
It bears stressing that the exemption from the SSL is a "privilege"
fully within the legislative prerogative to give or deny. However, its
subsequent grant to the rank-and-file of the seven other GFIs and
continued denial to the BSP rank-and-file employees breached the
latter's right to equal protection. In other words, while the granting
of a privilege per se is a matter of policy exclusively within the
domain and prerogative of Congress, the validity or legality of the
exercise of this prerogative is subject to judicial review.[58] So
when the distinction made is superficial, and not based on
substantial distinctions that make real differences between those
included and excluded, it becomes a matter of arbitrariness that
this Court has the duty and the power to correct.[59] As held in the
United Kingdom case of Hooper v. Secretary of State for Work and
Pensions,[60] once the State has chosen to confer benefits,
"discrimination" contrary to law may occur where favorable

PALISOC & SARMIENTO

treatment already afforded to one group is refused to another, even

though the State is under no obligation to provide that favorable
treatment.
[61]
The disparity of treatment between BSP rank-and-file and the rankand-file of the other seven GFIs definitely bears the unmistakable
badge of invidious discrimination - no one can, with candor and
fairness, deny the discriminatory character of the subsequent
blanket and total exemption of the seven other GFIs from the SSL
when such was withheld from the BSP. Alikes are being treated as
unalikes
without
any
rational
basis.
Again, it must be emphasized that the equal protection clause does
not demand absolute equality but it requires that all persons shall
be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. Favoritism and undue
preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be
looked upon in terms of burden or charges, those that fall within a
class should be treated in the same fashion; whatever restrictions
cast on some in the group is equally binding on the rest.[62]
In light of the lack of real and substantial distinctions that would
justify the unequal treatment between the rank-and-file of BSP from
the seven other GFIs, it is clear that the enactment of the seven
subsequent charters has rendered the continued application of the
challenged proviso anathema to the equal protection of the law,
and
the
same
should
be
declared
as
an
outlaw.
IV.
Equal Protection Under International Lens
In our jurisdiction, the standard and analysis of equal protection
challenges in the main have followed the "rational basis" test,
coupled with a deferential attitude to legislative classifications[63]
and a reluctance to invalidate a law unless there is a showing of a
clear and unequivocal breach of the Constitution. [64]
A. Equal Protection in the United States
In contrast, jurisprudence in the U.S. has gone beyond the static
"rational basis" test. Professor Gunther highlights the development
in equal protection jurisprudential analysis, to wit: [65]
Traditionally, equal protection supported only minimal judicial

290 | P a g e

intervention in most contexts. Ordinarily, the command of equal

protection was only that government must not impose differences
in treatment "except upon some reasonable differentiation fairly
related to the object of regulation." The old variety of equal
protection scrutiny focused solely on the means used by the
legislature: it insisted merely that the classification in the statute
reasonably relates to the legislative purpose. Unlike substantive
due process, equal protection scrutiny was not typically concerned
with identifying "fundamental values" and restraining legislative
ends. And usually the rational classification requirement was
readily satisfied: the courts did not demand a tight fit between
classification and purpose; perfect congruence between means and
ends was not required.
xxx xxx xxx
[From marginal intervention to major cutting edge: The Warren
Court's "new equal protection" and the two-tier approach.]
From its traditional modest role, equal protection burgeoned into a
major intervention tool during the Warren era, especially in the
1960s. The Warren Court did not abandon the deferential
ingredients of the old equal protection: in most areas of economic
and social legislation, the demands imposed by equal protection
remained as minimal as ever...But the Court launched an equal
protection revolution by finding large new areas for strict rather
than deferential scrutiny. A sharply differentiated two-tier approach
evolved by the late 1960s: in addition to the deferential "old" equal
protection, a "new" equal protection, connoting strict scrutiny,
arose.... The intensive review associated with the new equal
protection imposed two demands - a demand not only as to means
but also one as to ends. Legislation qualifying for strict scrutiny
required a far closer fit between classification and statutory
purpose than the rough and ready flexibility traditionally tolerated
by the old equal protection: means had to be shown "necessary" to
achieve statutory ends, not merely "reasonably related" ones.
Moreover, equal protection became a source of ends scrutiny as
well: legislation in the areas of the new equal protection had to be
justified by "compelling" state interests, not merely the wide
spectrum of "legitimate" state ends.
The Warren Court identified the areas appropriate for strict scrutiny
by searching for two characteristics: the presence of a "suspect"
classification; or an impact on "fundamental" rights or interests. In
the category of "suspect classifications," the Warren Court's major
contribution was to intensify the strict scrutiny in the traditionally
interventionist area of racial classifications. But other cases also

PALISOC & SARMIENTO

suggested that there might be more other suspect categories as

well: illegitimacy and wealth for example. But it was the
'fundamental interests" ingredient of the new equal protection that
proved particularly dynamic, open-ended, and amorphous.....
[Other fundamental interests included voting, criminal appeals, and
the
right
of
interstate
travel
....]
xxx

xxx

xxx

The Burger Court and Equal Protection.

The Burger Court was reluctant to expand the scope of the new
equal protection, although its best established ingredient retains
vitality. There was also mounting discontent with the rigid two-tier
formulations of the Warren Court's equal protection doctrine. It was
prepared to use the clause as an interventionist tool without
resorting to the strict language of the new equal protection....
[Among the fundamental interests identified during this time were
voting and access to the ballot, while "suspect" classifications
included sex, alienage and illegitimacy.]
xxx

xxx

xxx

Even while the two-tier scheme has often been adhered to in form,
there has also been an increasingly noticeable resistance to the
sharp difference between deferential "old" and interventionist
"new" equal protection. A number of justices sought formulations
that would blur the sharp distinctions of the two-tiered approach or
that would narrow the gap between strict scrutiny and deferential
review. The most elaborate attack came from Justice Marshall,
whose frequently stated position was developed most elaborately
in his dissent in the Rodriguez case: [66]
The Court apparently seeks to establish [that] equal protection
cases fall into one of two neat categories which dictate the
appropriate standard of review - strict scrutiny or mere rationality.
But this (sic) Court's [decisions] defy such easy categorization. A
principled reading of what this Court has done reveals that it has
applied a spectrum of standards in reviewing discrimination
allegedly violative of the equal protection clause. This spectrum
clearly comprehends variations in the degree of care with which
Court will scrutinize particular classification, depending, I believe,
on the constitutional and societal importance of the interests
adversely affected and the recognized invidiousness of the basis
upon which the particular classification is drawn.
Justice Marshall's "sliding scale" approach describes many of the

291 | P a g e

modern decisions, although it is a formulation that the majority

refused to embrace. But the Burger Court's results indicate at least
two significant changes in equal protection law: First, invocation of
the "old" equal protection formula no longer signals, as it did with
the Warren Court, an extreme deference to legislative
classifications and a virtually automatic validation of challenged
statutes. Instead, several cases, even while voicing the minimal
"rationality" "hands-off" standards of the old equal protection,
proceed to find the statute unconstitutional. Second, in some areas
the modern Court has put forth standards for equal protection
review that, while clearly more intensive than the deference of the
"old" equal protection, are less demanding than the strictness of
the "new" equal protection. Sex discrimination is the best
established example of an "intermediate" level of review. Thus, in
one case, the Court said that "classifications by gender must serve
important governmental objectives and must be substantially
related to achievement of those objectives." That standard is
"intermediate" with respect to both ends and means: where ends
must be "compelling" to survive strict scrutiny and merely
"legitimate" under the "old" mode, "important" objectives are
required here; and where means must be "necessary" under the
"new" equal protection, and merely "rationally related" under the
"old" equal protection, they must be "substantially related" to
survive the "intermediate" level of review. (emphasis supplied,
citations omitted)
B. Equal Protection in Europe
The United Kingdom and other members of the European
Community have also gone forward in discriminatory legislation
and jurisprudence. Within the United Kingdom domestic law, the
most extensive list of protected grounds can be found in Article 14
of the European Convention on Human Rights (ECHR). It prohibits
discrimination on grounds such as "sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other
status." This list is illustrative and not exhaustive. Discrimination on
the basis of race, sex and religion is regarded as grounds that
require strict scrutiny. A further indication that certain forms of
discrimination are regarded as particularly suspect under the
Covenant can be gleaned from Article 4, which, while allowing
states to derogate from certain Covenant articles in times of
national emergency, prohibits derogation by measures that
discriminate solely on the grounds of "race, colour, language,
religion
or
social
origin."[67]
Moreover, the European Court of Human Rights has developed a

PALISOC & SARMIENTO

test of justification which varies with the ground of discrimination.

In the Belgian Linguistics case[68] the European Court set the
standard of justification at a low level: discrimination would
contravene the Convention only if it had no legitimate aim, or there
was no reasonable relationship of proportionality between the
means employed and the aim sought to be realised.[69] But over
the years, the European Court has developed a hierarchy of
grounds covered by Article 14 of the ECHR, a much higher level of
justification being required in respect of those regarded as
"suspect" (sex, race, nationality, illegitimacy, or sexual orientation)
than of others. Thus, in Abdulaziz, [70] the European Court declared
that:
. . . [t]he advancement of the equality of the sexes is today a major
goal in the member States of the Council of Europe. This means
that very weighty reasons would have to be advanced before a
difference of treatment on the ground of sex could be regarded as
compatible
with
the
Convention.
And in Gaygusuz v. Austria,[71] the European Court held that "very
weighty reasons would have to be put forward before the Court
could regard a difference of treatment based exclusively on the
ground of nationality as compatible with the Convention."[72] The
European Court will then permit States a very much narrower
margin of appreciation in relation to discrimination on grounds of
sex, race, etc., in the application of the Convention rights than it
will in relation to distinctions drawn by states between, for
example,
large
and
small
land-owners.
[73]
C. Equality under International Law
The principle of equality has long been recognized under
international law. Article 1 of the Universal Declaration of Human
Rights proclaims that all human beings are born free and equal in
dignity and rights. Non-discrimination, together with equality before
the law and equal protection of the law without any discrimination,
constitutes basic principles in the protection of human rights. [74]
Most, if not all, international human rights instruments include
some prohibition on discrimination and/or provisions about equality.
[75] The general international provisions pertinent to discrimination
and/or equality are the International Covenant on Civil and Political
Rights (ICCPR);[76] the International Covenant on Economic, Social
and Cultural Rights (ICESCR); the International Convention on the
Elimination of all Forms of Racial Discrimination (CERD);[77] the
Convention on the Elimination of all Forms of Discrimination against

292 | P a g e

Women (CEDAW); and the Convention on the Rights of the Child

(CRC).

Covenant including the rights in other international treaties such as

the
right
to
social
security
found
in
ICESCR:

In the broader international context, equality is also enshrined in

regional instruments such as the American Convention on Human
Rights;[78] the African Charter on Human and People's Rights;[79]
the European Convention on Human Rights;[80] the European
Social Charter of 1961 and revised Social Charter of 1996; and the
European Union Charter of Rights (of particular importance to
European states). Even the Council of the League of Arab States
has adopted the Arab Charter on Human Rights in 1994, although it
has yet to be ratified by the Member States of the League.[81]

Although Article 26 requires that legislation should prohibit

discrimination, it does not of itself contain any obligation with
respect to the matters that may be provided for by legislation. Thus
it does not, for example, require any state to enact legislation to
provide for social security. However, when such legislation is
adopted in the exercise of a State's sovereign power, then such
legislation must comply with Article 26 of the Covenant.[89]

The equality provisions in these instruments do not merely function

as traditional "first generation" rights, commonly viewed as
concerned only with constraining rather than requiring State action.
Article 26 of the ICCPR requires "guarantee[s]" of "equal and
effective protection against discrimination" while Articles 1 and 14
of the American and European Conventions oblige States Parties "to
ensure ... the full and free exercise of [the rights guaranteed] ...
without any discrimination" and to "secure without discrimination"
the enjoyment of the rights guaranteed.[82] These provisions
impose a measure of positive obligation on States Parties to take
steps to eradicate discrimination.
In the employment field, basic detailed minimum standards
ensuring equality and prevention of discrimination, are laid down in
the ICESCR[83] and in a very large number of Conventions
administered by the International Labour Organisation, a United
Nations body. [84] Additionally, many of the other international and
regional human rights instruments have specific provisions relating
to employment.[85]
The United Nations Human Rights Committee has also gone beyond
the earlier tendency to view the prohibition against discrimination
(Article 26) as confined to the ICCPR rights.[86] In Broeks[87] and
Zwaan-de Vries,[88] the issue before the Committee was whether
discriminatory provisions in the Dutch Unemployment Benefits Act
(WWV) fell within the scope of Article 26. The Dutch government
submitted that discrimination in social security benefit provision
was not within the scope of Article 26, as the right was contained in
the ICESCR and not the ICCPR. They accepted that Article 26 could
go beyond the rights contained in the Covenant to other civil and
political rights, such as discrimination in the field of taxation, but
contended that Article 26 did not extend to the social, economic,
and cultural rights contained in ICESCR. The Committee rejected
this argument. In its view, Article 26 applied to rights beyond the

PALISOC & SARMIENTO

Breaches of the right to equal protection occur directly or indirectly.

A classification may be struck down if it has the purpose or effect of
violating the right to equal protection. International law recognizes
that discrimination may occur indirectly, as the Human Rights
Committee[90] took into account the definitions of discrimination
adopted
by
CERD
and
CEDAW
in
declaring
that:
. . . "discrimination" as used in the [ICCPR] should be understood to
imply any distinction, exclusion, restriction or preference which is
based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on
an equal footing, of all rights and freedoms. [91] (emphasis
supplied)
Thus, the two-tier analysis made in the case at bar of the
challenged provision, and its conclusion of unconstitutionality by
subsequent operation, are in cadence and in consonance with the
progressive trend of other jurisdictions and in international law.
There should be no hesitation in using the equal protection clause
as a major cutting edge to eliminate every conceivable irrational
discrimination in our society. Indeed, the social justice imperatives
in the Constitution, coupled with the special status and protection
afforded to labor, compel this approach.[92]
Apropos the special protection afforded to labor under our
Constitution and international law, we held in International School
Alliance of Educators v. Quisumbing: [93]
That public policy abhors inequality and discrimination is beyond
contention. Our Constitution and laws reflect the policy against
these evils. The Constitution in the Article on Social Justice and
Human Rights exhorts Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all
people to human dignity, reduce social, economic, and political

293 | P a g e

inequalities." The very broad Article 19 of the Civil Code requires

every person, "in the exercise of his rights and in the performance
of his duties, [to] act with justice, give everyone his due, and
observe
honesty
and
good
faith."
International law, which springs from general principles of law,
likewise proscribes discrimination. General principles of law include
principles of equity, i.e., the general principles of fairness and
justice, based on the test of what is reasonable. The Universal
Declaration of Human Rights, the International Covenant on
Economic, Social, and Cultural Rights, the International Convention
on the Elimination of All Forms of Racial Discrimination, the
Convention against Discrimination in Education, the Convention
(No. 111) Concerning Discrimination in Respect of Employment and
Occupation - all embody the general principle against
discrimination, the very antithesis of fairness and justice. The
Philippines, through its Constitution, has incorporated this principle
as
part
of
its
national
laws.
In the workplace, where the relations between capital and labor are
often skewed in favor of capital, inequality and discrimination by
the employer are all the more reprehensible.
The Constitution specifically provides that labor is entitled to
"humane conditions of work." These conditions are not restricted to
the physical workplace - the factory, the office or the field - but
include as well the manner by which employers treat their
employees.
The Constitution also directs the State to promote "equality of
employment opportunities for all." Similarly, the Labor Code
provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both the
spirit and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms
and conditions of employment.
xxx xxx xxx
Notably, the International Covenant on Economic, Social, and
Cultural Rights, in Article 7 thereof, provides:
The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of just and [favorable] conditions of
work,
which
ensure,
in
particular:

PALISOC & SARMIENTO

a. Remuneration which provides all workers, as a minimum, with:

i. Fair wages and equal remuneration for work of equal value
without distinction of any kind, in particular women being
guaranteed conditions of work not inferior to those enjoyed by
men,
with
equal
pay
for
equal
work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize in this
jurisdiction the long honored legal truism of "equal pay for equal
work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be
paid
similar
salaries.
(citations
omitted)
Congress retains its wide discretion in providing for a valid
classification, and its policies should be accorded recognition and
respect by the courts of justice except when they run afoul of the
Constitution.[94] The deference stops where the classification
violates a fundamental right, or prejudices persons accorded
special protection by the Constitution. When these violations arise,
this Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not
suffice.
Admittedly, the view that prejudice to persons accorded special
protection by the Constitution requires a stricter judicial scrutiny
finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se
controlling in this jurisdiction. At best, they are persuasive and have
been used to support many of our decisions.[95] We should not
place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to
our own decisions through the employment of our own
endowments. We live in a different ambience and must decide our
own problems in the light of our own interests and needs, and of
our qualities and even idiosyncrasies as a people, and always with
our own concept of law and justice.[96] Our laws must be
construed in accordance with the intention of our own lawmakers
and such intent may be deduced from the language of each law
and the context of other local legislation related thereto. More
importantly, they must be construed to serve our own public
interest which is the be-all and the end-all of all our laws. And it

294 | P a g e

need not be stressed that our public interest is distinct and

different from others.[97]
In the 2003 case of Francisco v. House of Representatives, this
Court has stated that: "[A]merican jurisprudence and authorities,
much less the American Constitution, are of dubious application for
these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is
concerned....[I]n resolving constitutional disputes, [this Court]
should not be beguiled by foreign jurisprudence some of which are
hardly applicable because they have been dictated by different
constitutional settings and needs."[98] Indeed, although the
Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. [99]
Further, the quest for a better and more "equal" world calls for the
use of equal protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and action in
the Constitution. The Preamble proclaims "equality" as an ideal
precisely in protest against crushing inequities in Philippine society.
The command to promote social justice in Article II, Section 10, in
"all phases of national development," further explicitated in Article
XIII, are clear commands to the State to take affirmative action in
the direction of greater equality.... [T]here is thus in the Philippine
Constitution no lack of doctrinal support for a more vigorous state
effort towards achieving a reasonable measure of equality.[100]
Our present Constitution has gone further in guaranteeing vital
social and economic rights to marginalized groups of society,
including labor.[101] Under the policy of social justice, the law
bends over backward to accommodate the interests of the working
class on the humane justification that those with less privilege in
life should have more in law.[102] And the obligation to afford
protection to labor is incumbent not only on the legislative and
executive branches but also on the judiciary to translate this pledge
into a living reality.[103] Social justice calls for the humanization of
laws and the equalization of social and economic forces by the
State so that justice in its rational and objectively secular
conception
may
at
least
be
approximated.[104]
V.
A Final Word
Finally, concerns have been raised as to the propriety of a ruling
voiding the challenged provision. It has been proffered that the

PALISOC & SARMIENTO

remedy of petitioner is not with this Court, but with Congress,

which alone has the power to erase any inequity perpetrated by
R.A. No. 7653. Indeed, a bill proposing the exemption of the BSP
rank-and-file from the SSL has supposedly been filed.
Under most circumstances, the Court will exercise judicial restraint
in deciding questions of constitutionality, recognizing the broad
discretion given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the "rational basis" test, and
the legislative discretion would be given deferential treatment.
[105]
But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against persons
favored by the Constitution with special protection, judicial scrutiny
ought to be more strict. A weak and watered down view would call
for the abdication of this Court's solemn duty to strike down any
law repugnant to the Constitution and the rights it enshrines. This is
true whether the actor committing the unconstitutional act is a
private person or the government itself or one of its
instrumentalities. Oppressive acts will be struck down regardless of
the character or nature of the actor. [106]
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications, conditions or limitations particularly those prescribed or imposed by the Constitution - would
be set at naught. What is more, the judicial inquiry into such issue
and the settlement thereof are the main functions of courts of
justice under the Presidential form of government adopted in our
1935 Constitution, and the system of checks and balances, one of
its basic predicates. As a consequence, We have neither the
authority nor the discretion to decline passing upon said issue, but
are under the ineluctable obligation - made particularly more
exacting and peremptory by our oath, as members of the highest
Court of the land, to support and defend the Constitution - to settle
it. This explains why, in Miller v. Johnson, it was held that courts
have a "duty, rather than a power", to determine whether another
branch of the government has "kept within constitutional limits."
Not satisfied with this postulate, the court went farther and
stressed that, if the Constitution provides how it may be amended as it is in our 1935 Constitution - "then, unless the manner is
followed, the judiciary as the interpreter of that constitution, will
declare the amendment invalid." In fact, this very Court - speaking

295 | P a g e

through Justice Laurel, an outstanding authority on Philippine

Constitutional Law, as well as one of the highly respected and
foremost leaders of the Convention that drafted the 1935
Constitution - declared, as early as July 15, 1936, that "(i)n times of
social disquietude or political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments" of
the government.[107] (citations omitted; emphasis supplied)

for discrimination cannot be given any waiting time. Unless the

equal protection clause of the Constitution is a mere platitude, it is
the Court's duty to save them from reasonless discrimination.
IN VIEW WHEREOF, we hold that the continued operation and
implementation of the last proviso of Section 15(c), Article II of
Republic Act No. 7653 is unconstitutional.

In the case at bar, the challenged proviso operates on the basis of

the salary grade or officer-employee status. It is akin to a
distinction based on economic class and status, with the higher
grades as recipients of a benefit specifically withheld from the
lower grades. Officers of the BSP now receive higher compensation
packages that are competitive with the industry, while the poorer,
low-salaried employees are limited to the rates prescribed by the
SSL. The implications are quite disturbing: BSP rank-and-file
employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education
and opportunities for career advancement - are given higher
compensation packages to entice them to stay. Considering that
majority, if not all, the rank-and-file employees consist of people
whose status and rank in life are less and limited, especially in
terms of job marketability, it is they - and not the officers - who
have the real economic and financial need for the adjustment This
is in accord with the policy of the Constitution "to free the people
from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for
all."[108] Any act of Congress that runs counter to this
constitutional desideratum deserves strict scrutiny by this Court
before it can pass muster.
To be sure, the BSP rank-and-file employees merit greater concern
from this Court. They represent the more impotent rank-and-file
government employees who, unlike employees in the private
sector, have no specific right to organize as a collective bargaining
unit and negotiate for better terms and conditions of employment,
nor the power to hold a strike to protest unfair labor practices. Not
only are they impotent as a labor unit, but their efficacy to lobby in
Congress is almost nil as R.A. No. 7653 effectively isolated them
from the other GFI rank-and-file in compensation. These BSP rankand-file employees represent the politically powerless and they
should not be compelled to seek a political solution to their unequal
and iniquitous treatment. Indeed, they have waited for many years
for the legislature to act. They cannot be asked to wait some more

PALISOC & SARMIENTO

296 | P a g e

LOUIS "BAROK" C. BIRAOGO, Petitioner, vs. THE PHILIPPINE

TRUTH
COMMISSION
OF
2010,
Respondent.

constitutional authority of the legislature to create a public office

and to appropriate funds therefor.7

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.

SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR.,
Petitioners, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR. and DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO B. ABAD, Respondents.
G.R. No. 192935 and G.R. No. 193036 | 2010-12-07

The second case, G.R. No. 193036, is a special civil action for
certiorari and prohibition filed by petitioners Edcel C. Lagman,
Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua,
Sr. (petitioners-legislators) as incumbent members of the House of
Representatives.

DECISION
MENDOZA,

J.:

When the judiciary mediates to allocate constitutional boundaries,

it does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and
guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are
established, limited and defined, and by which these powers are
distributed among the several departments.2 The Constitution is
the basic and paramount law to which all other laws must conform
and to which all persons, including the highest officials of the land,
must defer.3 Constitutional doctrines must remain steadfast no
matter what may be the tides of time. It cannot be simply made to
sway and accommodate the call of situations and much more tailor
itself to the whims and caprices of government and the people who
run
it.4
For consideration before the Court are two consolidated cases5
both of which essentially assail the validity and constitutionality of
Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine
Truth
Commission
of
2010."
The first case is G.R. No. 192935, a special civil action for
prohibition instituted by petitioner Louis Biraogo (Biraogo) in his
capacity as a citizen and taxpayer. Biraogo assails Executive Order
No. 1 for being violative of the legislative power of Congress under
Section 1, Article VI of the Constitution6 as it usurps the

PALISOC & SARMIENTO

The genesis of the foregoing cases can be traced to the events

prior to the historic May 2010 elections, when then Senator
Benigno Simeon Aquino III declared his staunch condemnation of
graft and corruption with his slogan, "Kung walang corrupt, walang
mahirap." The Filipino people, convinced of his sincerity and of his
ability to carry out this noble objective, catapulted the good
senator to the presidency.
To transform his campaign slogan into reality, President Aquino
found a need for a special body to investigate reported cases of
graft and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of
said
executive
order
read:
EXECUTIVE ORDER NO.
COMMISSION OF 2010

1 CREATING

THE

PHILIPPINE

TRUTH

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the

Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of
defiance of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects
the political, economic, and social life of a nation; in a very special
way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people's trust and confidence in the

297 | P a g e

Government

and

its

institutions;

WHEREAS, there is an urgent call for the determination of the truth

regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people's faith and
confidence in the Government and in their public servants;
WHEREAS, the President's battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption
and
the
evil
it
breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure
justice
for
all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to
reorganize
the
Office
of
the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the
Republic of the Philippines, by virtue of the powers vested in me by
law,
do
hereby
order:
SECTION 1. Creation of a Commission. " There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to
as the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption
of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be
served without fear or favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. " The Commission, which
shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily

PALISOC & SARMIENTO

tasked to conduct a thorough fact-finding investigation of reported

cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration
and
thereafter
submit
its
finding
and
recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and
corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to
investigate, and to this end require any agency, official or
employee of the Executive Branch, including government-owned or
controlled corporations, to produce documents, books, records and
other papers;
c) Upon proper request or representation, obtain information and
documents from the Senate and the House of Representatives
records of investigations conducted by committees thereof relating
to matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from
the courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption
cases filed with the Sandiganbayan or the regular courts, as the
case
may
be;
e) Invite or subpoena witnesses and take their testimonies and for
that purpose, administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person
as a state witness to ensure that the ends of justice be fully served,
that such person who qualifies as a state witness under the Revised
Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutorial authorities, by means of a special or
interim report and recommendation, all evidence on corruption of
public officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground
to believe that they are liable for graft and corruption under
pertinent applicable laws;

298 | P a g e

h) Call upon any government investigative or prosecutorial agency

such as the Department of Justice or any of the agencies under it,
and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and
duties;
i) Engage or contract the services of resource persons,
professionals and other personnel determined by it as necessary to
carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it
deems necessary to effectively and efficiently carry out the
objectives of this Executive Order and to ensure the orderly
conduct of its investigations, proceedings and hearings, including
the
presentation
of
evidence;
k) Exercise such other acts incident to or are appropriate and
necessary in connection with the objectives and purposes of this
Order.
SECTION 3. Staffing Requirements. " x x x.
SECTION 4. Detail of Employees. " x x x.
SECTION 5. Engagement of Experts. " x x x

President shall provide the necessary funds for the Commission to

ensure that it can exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively, efficiently, and
expeditiously
as
possible.
SECTION 12. Office. " x x x.
SECTION 13. Furniture/Equipment. " x x x.
SECTION 14. Term of the Commission. " The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. " x x x.
SECTION 16. Transfer of Records and Facilities of the Commission.
" x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.

SECTION 6. Conduct of Proceedings. " x x x.

SECTION 18. Separability Clause. If any provision of this Order is

declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. "

x x x.

SECTION 19. Effectivity. " This Executive Order shall take

effect immediately.

SECTION 8. Protection of Witnesses/Resource Persons. " x x x.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give

Testimony. " Any government official or personnel who,
without lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be
dealt with in accordance with law.

(SGD.) BENIGNO S. AQUINO III By the President:

SECTION 10. Duty to Extend Assistance to the Commission. " x

x x.
SECTION 11. Budget for the Commission. " The Office of the

PALISOC & SARMIENTO

(SGD.) PAQUITO N. OCHOA, JR. Executive Secretary

Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine
Truth Commission (PTC) is a mere ad hoc body formed under the
Office of the President with the primary task to investigate reports
of graft and corruption committed by third-level public officers and
employees, their co-principals, accomplices and accessories during
the previous administration, and thereafter to submit its finding
and recommendations to the President, Congress and the

299 | P a g e

Ombudsman. Though it has been described as an "independent

collegial body," it is essentially an entity within the Office of the
President Proper and subject to his control. Doubtless, it constitutes
a public office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial
body as it cannot adjudicate, arbitrate, resolve, settle, or render
awards in disputes between contending parties. All it can do is
gather, collect and assess evidence of graft and corruption and
make recommendations. It may have subpoena powers but it has
no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such
facts if probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it cannot impose
criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial factfinding bodies "to establish the facts and context of serious
violations of human rights or of international humanitarian law in a
country's past."9 They are usually established by states emerging
from periods of internal unrest, civil strife or authoritarianism to
serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2)
they investigate patterns of abuse committed over a period of time,
as opposed to a particular event; (3) they are temporary bodies
that finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially
sanctioned,
authorized
or empowered
by
the
State.10
"Commission's members are usually empowered to conduct
research, support victims, and propose policy recommendations to
prevent recurrence of crimes. Through their investigations, the
commissions may aim to discover and learn more about past
abuses, or formally acknowledge them. They may aim to prepare
the way for prosecutions and recommend institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission of South Africa,
the principal function of which was to heal the wounds of past

PALISOC & SARMIENTO

violence and to prevent future conflict by providing a cathartic

experience for victims.
The PTC is a far cry from South Africa's model. The latter placed
more emphasis on reconciliation than on judicial retribution, while
the marching order of the PTC is the identification and punishment
of perpetrators. As one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk
about reconciliation, if they mean that they would like us to simply
forget about the wrongs that they have committed in the past, we
have this to say: There can be no reconciliation without justice.
When we allow crimes to go unpunished, we give consent to their
occurring
over
and
over
again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to
enjoin the PTC from performing its functions. A perusal of the
arguments of the petitioners in both cases shows that they are
essentially the same. The petitioners-legislators summarized them
in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the
power of the Congress to create a public office and appropriate
funds
for
its
operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1 because
the delegated authority of the President to structurally reorganize
the Office of the President to achieve economy, simplicity and
efficiency does not include the power to create an entirely new
public office which was hitherto inexistent like the "Truth
Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent
statutes when it vested the "Truth Commission" with quasi-judicial
powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the
Department of Justice created under the Administrative Code of
1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively
targets for investigation and prosecution officials and personnel of
the previous administration as if corruption is their peculiar species

300 | P a g e

even as it excludes those of the other administrations, past and

present,
who
may
be
indictable.
(e) The creation of the "Philippine Truth Commission of 2010"
violates the consistent and general international practice of four
decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice
forms part of the generally accepted principles of international law
which the Philippines is mandated to adhere to pursuant to the
Declaration of Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility,
an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will
altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not
constitutionally challenged is of no moment because neither laches
nor estoppel can bar an eventual question on the constitutionality
and validity of an executive issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the
Office of the Solicitor General (OSG), essentially questioned the
legal standing of petitioners and defended the assailed executive
order
with
the
following
arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a
public office because the President's executive power and power of
control necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully executed and that,
in any event, the Constitution, Revised Administrative Code of 1987
(E.O. No. 292), 15 Presidential Decree (P.D.) No. 141616 (as
amended by P.D. No. 1772), R.A. No. 9970,17 and settled
jurisprudence that authorize the President to create or form such
bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate
funds because there is no appropriation but a mere allocation of
funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the
functions of the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ), because it is a fact-finding body and
not a quasi-judicial body and its functions do not duplicate,
supplant
or
erode
the
latter's
jurisdiction.

PALISOC & SARMIENTO

4] The Truth Commission does not violate the equal protection

clause because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of
other executive orders and presidential issuances creating similar
bodies to justify the creation of the PTC such as Presidential
Complaint and Action Commission (PCAC) by President Ramon B.
Magsaysay, Presidential Committee on Administrative Performance
Efficiency (PCAPE) by President Carlos P. Garcia and Presidential
Agency on Reform and Government Operations (PARGO) by
President
Ferdinand
E.
Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file
their respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of Congress to create
and to appropriate funds for public offices, agencies and
commissions;
3. Whether or not Executive Order No. 1 supplants the powers of
the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal
protection
clause;
and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must

301 | P a g e

be raised at the earliest opportunity; and (4) the issue of

constitutionality must be the very lis mota of the case.19

congressional action but will simply be an exercise of the

President's power over contingent funds.

Among all these limitations, only the legal standing of the

petitioners has been put at issue.

As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct
injury attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may
justify his clamor for the Court to exercise judicial power and to
wield the axe over presidential issuances in defense of the
Constitution. The case of David v. Arroyo24 explained the deepseated rules on locus standi. Thus:

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators
to file their petition for failure to demonstrate their personal stake
in the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any
personal injury attributable to the creation of the PTC. Not claiming
to be the subject of the commission's investigations, petitioners will
not sustain injury in its creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing
of the petitioners-legislators to assail Executive Order No. 1.
Evidently, their petition primarily invokes usurpation of the power
of the Congress as a body to which they belong as members. This
certainly justifies their resolve to take the cudgels for Congress as
an institution and present the complaints on the usurpation of their
power and rights as members of the legislature before the Court. As
held in Philippine Constitution Association v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power
of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can
be questioned by a member of Congress. In such a case, any
member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in
their office remain inviolate. Thus, they are allowed to question the
validity of any official action which, to their mind, infringes on their
prerogatives
as
legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has
no standing to question the creation of the PTC and the budget for
its operations.23 It emphasizes that the funds to be used for the
creation and operation of the commission are to be taken from
those funds already appropriated by Congress. Thus, the allocation
and disbursement of funds for the commission will not entail

PALISOC & SARMIENTO

Locus standi is defined as "a right of appearance in a court of

justice on a given question." In private suits, standing is governed
by the "real-parties-in interest" rule as contained in Section 2, Rule
3 of the 1997 Rules of Civil Procedure, as amended. It provides that
"every action must be prosecuted or defended in the name of the
real party in interest." Accordingly, the "real-party-in interest" is
"the party who stands to be benefited or injured by the judgment in
the suit or the party entitled to the avails of the suit." Succinctly
put, the plaintiff's standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a "public right" in assailing an
allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or 'taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer's suit is in a different category from the plaintiff in a
citizen's suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of mere public
right, however...the people are the real parties...It is at least the
right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer's suits, Terr v.
Jordan held that "the right of a citizen and a taxpayer to maintain

302 | P a g e

an action in courts to restrain the unlawful use of public funds to his

injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt, later
reaffirmed in Tileston v. Ullman. The same Court ruled that for a
private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he
has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of
the public.
This Court adopted the "direct injury" test in our jurisdiction. In
People v. Vera, it held that the person who impugns the validity of a
statute must have "a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio
v. President of the Senate, Manila Race Horse Trainers' Association
v. De la Fuente, Pascual v. Secretary of Public Works and AntiChinese League of the Philippines v. Felix. [Emphases included.
Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court
held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements
may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,27 ordinary citizens
and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and
general interest shared in common with the public.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29 are nonexistent in this case. The Court, however, finds reason in Biraogo's
assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court. There

PALISOC & SARMIENTO

are constitutional issues in the petition which deserve the attention

of this Court in view of their seriousness, novelty and weight as
precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the
Bar, they should be resolved for the guidance of all.30
Undoubtedly, the Filipino people are more than interested to know
the status of the President's first effort to bring about a promised
change to the country. The Court takes cognizance of the petition
not due to overwhelming political undertones that clothe the issue
in the eyes of the public, but because the Court stands firm in its
oath to perform its constitutional duty to settle legal controversies
with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the
Truth Commission is a public office and not merely an adjunct body
of the Office of the President.31 Thus, in order that the President
may create a public office he must be empowered by the
Constitution, a statute or an authorization vested in him by law.
According to petitioner, such power cannot be presumed32 since
there is no provision in the Constitution or any specific law that
authorizes the President to create a truth commission.33 He adds
that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot
serve as basis for the creation of a truth commission considering
the aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish."34 Insofar as it
vests in the President the plenary power to reorganize the Office of
the President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in
the Constitution and must be deemed repealed upon the effectivity
thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and
not with the executive branch of government. They maintain that
the delegated authority of the President to reorganize under
Section 31 of the Revised Administrative Code: 1) does not permit
the President to create a public office, much less a truth
commission; 2) is limited to the reorganization of the administrative
structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President
Proper, transfer of functions and transfer of agencies; and 4) only to
achieve simplicity, economy and efficiency.36 Such continuing
authority of the President to reorganize his office is limited, and by

303 | P a g e

issuing Executive Order No. 1, the President overstepped the limits

of this delegated authority.
The OSG counters that there is nothing exclusively legislative about
the creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past
presidents, it argues that the authority of the President to create
public offices within the Office of the President Proper has long
been recognized.37 According to the OSG, the Executive, just like
the other two branches of government, possesses the inherent
authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the
exercise of its administrative functions.38 This power, as the OSG
explains it, is but an adjunct of the plenary powers wielded by the
President under Section 1 and his power of control under Section
17,
both
of
Article
VII
of
the
Constitution.39
It contends that the President is necessarily vested with the power
to conduct fact-finding investigations, pursuant to his duty to
ensure that all laws are enforced by public officials and employees
of his department and in the exercise of his authority to assume
directly the functions of the executive department, bureau and
office, or interfere with the discretion of his officials.40 The power
of the President to investigate is not limited to the exercise of his
power of control over his subordinates in the executive branch, but
extends further in the exercise of his other powers, such as his
power to discipline subordinates,41 his power for rule making,
adjudication and licensing purposes42 and in order to be informed
on matters which he is entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it
was held that the President has the power to reorganize the offices
and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid
delegation of the legislative power to reorganize executive offices
under existing statutes.
Thus, the OSG concludes that the power of control necessarily
includes the power to create offices. For the OSG, the President
may create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation
of the PTC fall within the ambit of the power to reorganize as
expressed in Section 31 of the Revised Administrative Code?
Section 31 contemplates "reorganization" as limited by the
following functional and structural lines: (1) restructuring the

PALISOC & SARMIENTO

internal organization of the Office of the President Proper by

abolishing, consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any function
under the Office of the President to any other Department/Agency
or vice versa; or (3) transferring any agency under the Office of the
President to any other Department/Agency or vice versa. Clearly,
the provision refers to reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of
functions. These point to situations where a body or an office is
already existent but a modification or alteration thereof has to be
effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the
question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of
the President under Section 31 is a misplaced supposition, even in
the plainest meaning attributable to the term "restructure""
an "alteration of an existing structure." Evidently, the PTC was not
part of the structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held in Buklod ng Kawaning
EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of
the power " that which constitutes an express grant of power.
Under Section 31, Book III of Executive Order No. 292 (otherwise
known as the Administrative Code of 1987), "the President, subject
to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of
the President." For this purpose, he may transfer the functions of
other Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation
of offices, or abolition thereof by reason of economy or redundancy
of functions." It takes place when there is an alteration of the
existing structure of government offices or units therein, including
the lines of control, authority and responsibility between them. The
EIIB is a bureau attached to the Department of Finance. It falls
under the Office of the President. Hence, it is subject to the
President's continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President's power of control. Control is essentially the power to
alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the

304 | P a g e

judgment of the former with that of the latter.47 Clearly, the power
of control is entirely different from the power to create public
offices. The former is inherent in the Executive, while the latter
finds basis from either a valid delegation from Congress, or his
inherent duty to faithfully execute the laws.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D. 1416 should not be
considered effective anymore upon the promulgation, adoption,
ratification
of
the
1987
Constitution.

The question is this, is there a valid delegation of power from

Congress, empowering the President to create a public office?

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.

According to the OSG, the power to create a truth commission

pursuant to the above provision finds statutory basis under P.D.
1416, as amended by P.D. No. 1772.48 The said law granted the
President the continuing authority to reorganize the national
government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities, transfer appropriations,
and to standardize salaries and materials. This decree, in relation to
Section 20, Title I, Book III of E.O. 292 has been invoked in several
cases such as Larin v. Executive Secretary.49

ASSOCIATE JUSTICE CARPIO: The power of the President to

reorganize the entire National Government is deemed repealed, at
least, upon the adoption of the 1987 Constitution, correct.

The Court, however, declines to recognize P.D. No. 1416 as a

justification for the President to create a public office. Said decree
is already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize
the administrative structure of the national government including
the power to create offices and transfer appropriations pursuant to
one of the purposes of the decree, embodied in its last "Whereas"
clause:
WHEREAS, the transition towards the parliamentary form of
government will necessitate flexibility in the organization of the
national
government.
Clearly, as it was only for the purpose of providing manageability
and resiliency during the interim, P.D. No. 1416, as amended by P.D.
No. 1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the
1987 Constitution. In fact, even the Solicitor General agrees with
this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was
the last whereas clause of P.D. 1416 says "it was enacted to
prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive
powers
are
fused,
correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.

PALISOC & SARMIENTO

SOLICITOR GENERAL CADIZ: Yes, Your Honor.50

While the power to create a truth commission cannot pass muster
on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the
creation of the PTC finds justification under Section 17, Article VII of
the Constitution, imposing upon the President the duty to ensure
that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power
in the three principal branches of government is a grant of all
powers inherent in them. The President's power to conduct
investigations to aid him in ensuring the faithful execution of laws
" in this case, fundamental laws on public accountability and
transparency " is inherent in the President's powers as the
Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not
mean that he is bereft of such authority.51 As explained in the
landmark
case
of
Marcos
v.
Manglapus:52
x x x. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution
among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power"
is the power to enforce the laws, for the President is head of state
as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself

305 | P a g e

withholds it. Furthermore, the Constitution itself provides that the

execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's
foreign relations.
On these premises, we hold the view that 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.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our
laws are faithfully executed. As stated above, the powers of the
President are not limited to those specific powers under the
Constitution.53 One of the recognized powers of the President
granted pursuant to this constitutionally-mandated duty is the
power to create ad hoc committees. This flows from the obvious
need to ascertain facts and determine if laws have been faithfully
executed. Thus, in Department of Health v. Camposano,54 the
authority of the President to issue Administrative Order No. 298,
creating an investigative committee to look into the administrative
charges filed against the employees of the Department of Health
for the anomalous purchase of medicines was upheld. In said case,
it was ruled:
The Chief Executive's power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally
granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that
all executive officials and employees faithfully comply with the law.
With AO 298 as mandate, the legality of the investigation is
sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or
that the former used the offices and facilities of the latter in
conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into matters
which the President is entitled to know so that he can be properly
advised and guided in the performance of his duties relative to the

PALISOC & SARMIENTO

execution and enforcement of the laws of the land. And if history is

to be revisited, this was also the objective of the investigative
bodies created in the past like the PCAC, PCAPE, PARGO, the
Feliciano Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government structure,
the Court is not inclined to declare such executive power as nonexistent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office,
suffice it to say that there will be no appropriation but only an
allotment or allocations of existing funds already appropriated.
Accordingly, there is no usurpation on the part of the Executive of
the power of Congress to appropriate funds. Further, there is no
need to specify the amount to be earmarked for the operation of
the commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of the
President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be
allocated to the PTC shall be subject to existing auditing rules and
regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President's power to conduct investigations to ensure that laws
are faithfully executed is well recognized. It flows from the faithfulexecution clause of the Constitution under Article VII, Section 17
thereof.56 As the Chief Executive, the president represents the
government as a whole and sees to it that all laws are enforced by
the officials and employees of his department. He has the authority
to directly assume the functions of the executive department.57
Invoking this authority, the President constituted the PTC to
primarily investigate reports of graft and corruption and to
recommend the appropriate action. As previously stated, no quasijudicial powers have been vested in the said body as it cannot
adjudicate rights of persons who come before it. It has been said
that "Quasi-judicial powers involve the power to hear and
determine questions of fact to which the legislative policy is to
apply and to decide in accordance with the standards laid down by
law itself in enforcing and administering the same law."58 In
simpler terms, judicial discretion is involved in the exercise of these
quasi-judicial power, such that it is exclusively vested in the
judiciary and must be clearly authorized by the legislature in the
case of administrative agencies.

306 | P a g e

The distinction between the power to investigate and the power to

adjudicate was delineated by the Court in Cario v. Commission on
Human Rights.59 Thus:
"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: x x to subject to an
official probe x x: to conduct an official inquiry." 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;" "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; x x an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning a
certain
matter
or
matters."
"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: x x to pass judgment on: settle judicially: x x act as
judge." And "adjudge" means "to decide or rule upon as a judge or
with judicial or quasi-judicial powers: x x to award or grant judicially
in a case of controversy x x."
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. x x. Implies a
judicial determination of a fact, and the entry of a judgment."
[Italics
included.
Citations
Omitted]
Fact-finding is not adjudication and it cannot be likened to the
judicial function of a court of justice, or even a quasi-judicial agency
or office. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function. To be
considered as such, the act of receiving evidence and arriving at

PALISOC & SARMIENTO

factual conclusions in a controversy must be accompanied by the

authority of applying the law to the factual conclusions to the end
that the controversy may be decided or resolved authoritatively,
finally and definitively, subject to appeals or modes of review as
may be provided by law.60 Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.61
Contrary to petitioners' apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all,
the investigative function of the commission will complement those
of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall
task of the commission to conduct a fact-finding investigation."62
The actual prosecution of suspected offenders, much less
adjudication on the merits of the charges against them,63 is
certainly not a function given to the commission. The phrase,
"when in the course of its investigation," under Section 2(g),
highlights this fact and gives credence to a contrary interpretation
from that of the petitioners. The function of determining probable
cause for the filing of the appropriate complaints before the courts
remains to be with the DOJ and the Ombudsman.64
At any rate, the Ombudsman's power to investigate under R.A. No.
6770 is not exclusive but is shared with other similarly authorized
government agencies. Thus, in the case of Ombudsman v.
Galicia,65
it
was
written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared
with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit trial
courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently
shared with the Department of Justice. Despite the passage of the
Local Government Code in 1991, the Ombudsman retains
concurrent jurisdiction with the Office of the President and the local
Sanggunians to investigate complaints against local elective
officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of
R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases

307 | P a g e

cognizable by the Sandiganbayan and, in the exercise of its primary

jurisdiction, it may take over, at any stage, from any investigatory
agency of government, the investigation of such cases. [Emphases
supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is
categorically out of the PTC's sphere of functions. Its power to
investigate is limited to obtaining facts so that it can advise and
guide the President in the performance of his duties relative to the
execution and enforcement of the laws of the land. In this regard,
the PTC commits no act of usurpation of the Ombudsman's
primordial duties.
The same holds true with respect to the DOJ. Its authority under
Section 3 (2), Chapter 1, Title III, Book IV in the Revised
Administrative Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate the commission of
crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission
and the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the
DOJ have a wider degree of latitude to decide whether or not to
reject the recommendation. These offices, therefore, are not
deprived of their mandated duties but will instead be aided by the
reports of the PTC for possible indictments for violations of graft
laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in
upholding the constitutionality of Executive Order No. 1 in view of
its apparent transgression of the equal protection clause enshrined
in Section 1, Article III (Bill of Rights) of the 1987 Constitution.
Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative
of this constitutional safeguard. They contend that it does not apply

PALISOC & SARMIENTO

equally to all members of the same class such that the intent of
singling out the "previous administration" as its sole object makes
the PTC an "adventure in partisan hostility."66 Thus, in order to be
accorded with validity, the commission must also cover reports of
graft and corruption in virtually all administrations previous to that
of former President Arroyo.67
The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not
only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of
controversies and anomalies"68 were reported to have been
committed against the Filipino people. They assail the classification
formulated by the respondents as it does not fall under the
recognized exceptions because first, "there is no substantial
distinction between the group of officials targeted for investigation
by Executive Order No. 1 and other groups or persons who abused
their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No.
1 to end corruption."69 In order to attain constitutional permission,
the petitioners advocate that the commission should deal with
"graft and grafters prior and subsequent to the Arroyo
administration with the strong arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases
of large scale graft and corruption solely during the said
administration.71 Assuming arguendo that the commission would
confine its proceedings to officials of the previous administration,
the petitioners argue that no offense is committed against the
equal protection clause for "the segregation of the transactions of
public officers during the previous administration as possible
subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the
Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large
scale graft and corruption in the previous administration which
have eroded public confidence in public institutions. There is,
therefore, an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter

308 | P a g e

others from committing the evil, restore the people's faith and
confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the
object of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most
likely bear the immediate consequence of the policies of the
previous administration.
Third. The classification of the previous administration as a
separate class for investigation lies in the reality that the evidence
of possible criminal activity, the evidence that could lead to
recovery of public monies illegally dissipated, the policy lessons to
be learned to ensure that anti-corruption laws are faithfully
executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due
diligence and good housekeeping by a nascent administration like
the Presidential Commission on Good Government (PCGG), created
by the late President Corazon C. Aquino under Executive Order No.
1 to pursue the recovery of ill-gotten wealth of her predecessor
former President Ferdinand Marcos and his cronies, and the
Saguisag Commission created by former President Joseph Estrada
under Administrative Order No, 53, to form an ad-hoc and
independent citizens' committee to investigate all the facts and
circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos.73 [Emphases
supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.74

PALISOC & SARMIENTO

"According to a long line of decisions, equal protection simply

requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed."75 It "requires public bodies and institutions to treat
similarly situated individuals in a similar manner."76 "The purpose
of the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the state's duly constituted
authorities."77 "In other words, the concept of equal justice under
the law requires the state to govern impartially, and it may not
draw distinctions between individuals solely on differences that are
irrelevant
to
a
legitimate
governmental
objective."78
The equal protection clause is aimed at all official state actions, not
just those of the legislature.79 Its inhibitions cover all the
departments of the government including the political and
executive departments, and extend to all actions of a state denying
equal protection of the laws, through whatever agency or whatever
guise is taken. 80
It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only;
and
(4) It applies equally to all members of the same class.81
"Superficial differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class.83 "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the

309 | P a g e

non-application

of

the

law

to

him."84

The classification must not be based on existing circumstances

only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in
Victoriano v. Elizalde Rope Workers' Union85 and reiterated in a
long
line
of
cases,86
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed
or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The
clear mandate of the envisioned truth commission is to investigate
and find out the truth "concerning the reported cases of graft and

PALISOC & SARMIENTO

corruption during the previous administration"87 only. The intent to

single out the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the
questioned
executive
order.
Specifically,
these
are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure
justice
for
all;
SECTION 1. Creation of a Commission. " There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to
as the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption
of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be
served without fear or favor.
SECTION 2. Powers and Functions. " The Commission, which
shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration
and
thereafter
submit
its
finding
and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]
In this regard, it must be borne in mind that the Arroyo
administration is but just a member of a class, that is, a class of
past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which
the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle
for
vindictiveness
and
selective
retribution.
Though the OSG enumerates several differences between the
Arroyo administration and other past administrations, these
distinctions are not substantial enough to merit the restriction of
the investigation to the "previous administration" only. The reports
of widespread corruption in the Arroyo administration cannot be

310 | P a g e

taken as basis for distinguishing said administration from earlier

administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness."89
The reason given is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp out or "end
corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing
evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the point.
Obviously, deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry by the PTC.
Neither is the PTC expected to conduct simultaneous investigations
of previous administrations, given the body's limited time and
resources. "The law does not require the impossible" (Lex non cogit
ad
impossibilia).91
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century's worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The PTC,
to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least,
have the authority to investigate all past administrations. While
reasonable prioritization is permitted, it should not be arbitrary lest
it be struck down for being unconstitutional. In the often quoted
language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public authority
with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice is
still within the prohibition of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body,
its scope is limited. The Court, however, is of the considered view
that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be

PALISOC & SARMIENTO

circumvented. The Constitution is the fundamental and paramount

law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public
authority administered.93 Laws that do not conform to the
Constitution should be stricken down for being unconstitutional.94
While the thrust of the PTC is specific, that is, for investigation of
acts of graft and corruption, Executive Order No. 1, to survive, must
be read together with the provisions of the Constitution. To exclude
the earlier administrations in the guise of "substantial distinctions"
would only confirm the petitioners' lament that the subject
executive order is only an "adventure in partisan hostility." In the
case of US v. Cyprian,95 it was written: "A rather limited number of
such classifications have routinely been held or assumed to be
arbitrary; those include: race, national origin, gender, political
activity or membership in a political party, union activity or
membership in a labor union, or more generally the exercise of first
amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who
naturally belong to the class.96 "Such a classification must not be
based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but must
be of such a nature as to embrace all those who may thereafter be
in similar circumstances and conditions. Furthermore, all who are in
situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from
those of the members of the class must be brought under the
influence of the law and treated by it in the same way as are the
members
of
the
class."97
The Court is not unaware that "mere underinclusiveness is not fatal
to the validity of a law under the equal protection clause."98
"Legislation is not unconstitutional merely because it is not allembracing and does not include all the evils within its reach."99 It
has been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply
because it happens to be incomplete.100 In several instances, the
underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in
future legislations or regulations. These cases refer to the "step by
step" process.101 "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial
scheme simply because it fails, through inadvertence or otherwise,
to cover every evil that might conceivably have been
attacked."102

311 | P a g e

In Executive Order No. 1, however, there is no inadvertence. That

the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored
at least three times in the assailed executive order. It must be
noted that Executive Order No. 1 does not even mention any
particular act, event or report to be focused on unlike the
investigative commissions created in the past. "The equal
protection clause is violated by purposeful and intentional
discrimination."103
To disprove petitioners' contention that there is deliberate
discrimination, the OSG clarifies that the commission does not only
confine itself to cases of large scale graft and corruption committed
during the previous administration.104 The OSG points to Section
17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.
The Court is not convinced. Although Section 17 allows the
President the discretion to expand the scope of investigations of
the PTC so as to include the acts of graft and corruption committed
in other past administrations, it does not guarantee that they would
be covered in the future. Such expanded mandate of the
commission will still depend on the whim and caprice of the
President. If he would decide not to include them, the section would
then be meaningless. This will only fortify the fears of the
petitioners that the Executive Order No. 1 was "crafted to tailor-fit
the prosecution of officials and personalities of the Arroyo
administration."105
The Court tried to seek guidance from the pronouncement in the
case of Virata v. Sandiganbayan,106 that the "PCGG Charter
(composed of Executive Orders Nos. 1, 2 and 14) does not violate
the equal protection clause." The decision, however, was devoid of
any discussion on how such conclusory statement was arrived at,
the principal issue in said case being only the sufficiency of a cause
of action.
A final word

PALISOC & SARMIENTO

The issue that seems to take center stage at present is - whether or

not the Supreme Court, in the exercise of its constitutionally
mandated power of Judicial Review with respect to recent initiatives
of the legislature and the executive department, is exercising
undue interference. Is the Highest Tribunal, which is expected to be
the protector of the Constitution, itself guilty of violating
fundamental tenets like the doctrine of separation of powers? Time
and again, this issue has been addressed by the Court, but it seems
that the present political situation calls for it to once again explain
the legal basis of its action lest it continually be accused of being a
hindrance to the nation's thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of
the 1987 Constitution, is vested with Judicial Power that "includes
the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave of abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any
branch
or
instrumentality
of
the
government."
Furthermore, in Section 4(2) thereof, it is vested with the power of
judicial review which is the power to declare a treaty, international
or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation unconstitutional. This
power also includes the duty to rule on the constitutionality of the
application, or operation of presidential decrees, proclamations,
orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between
the Supreme Court, on one hand, and the two co-equal bodies of
government, on the other. Many times the Court has been accused
of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a
good source of enlightenment, to wit: "And when the judiciary
mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not
imposing its own will upon a co-equal body but rather simply
making sure that any act of government is done in consonance with
the authorities and rights allocated to it by the Constitution. And, if

312 | P a g e

after said review, the Court finds no constitutional violations of any

sort, then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said
act
as
void
and
unconstitutional.
It cannot be denied that most government actions are inspired with
noble intentions, all geared towards the betterment of the nation
and its people. But then again, it is important to remember this
ethical principle: "The end does not justify the means." No matter
how noble and worthy of admiration the purpose of an act, but if
the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply let it
pass. It will continue to uphold the Constitution and its enshrined
principles.
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the
earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all the
branches of the government, it is the judiciary which is the most
interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within
constitutional bounds for "ours is still a government of laws and not
of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease
and desist from carrying out the provisions of Executive Order No.
1.
SO ORDERED.

PALISOC & SARMIENTO

313 | P a g e

BRICCIO "Ricky" A. POLLO, Petitioner,vs.CHAIRPERSON

KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE
GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO,
DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL
SERVICE COMMISSION, Respondents.
G.R. No. 181881 | 2011-10-18

Civil Service Commission

Batasan Hills, Quezon City

EN BANC
DECISION

As a concerned citizen of my beloved country, I would like to ask

from you personally if it is just alright for an employee of your
agency to be a lawyer of an accused govt employee having a
pending case in the CSC. I honestly think this is a violation of law
and unfair to others and your office.

VILLARAMA,J:
This case involves a search of office computer assigned to a
government employee who was charged administratively and
eventually dismissed from the service. The employees personal
files stored in the computer were used by the government
employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which
seeks to reverse and set aside the Decision[1] dated October 11,
2007 and Resolution[2] dated February 29, 2008 of the Court of
Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R.
SP No. 98224) filed by petitioner Briccio Ricky A. Pollo to nullify
the proceedings conducted by the Civil Service Commission (CSC)
which found him guilty of dishonesty, grave misconduct, conduct
prejudicial to the best interest of the service, and violation of
Republic Act (R.A.) No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC
Regional Office No. IV and also the Officer-in-Charge of the Public
Assistance and Liaison Division (PALD) under the Mamamayan
Muna Hindi Mamaya Na program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned lettercomplaint addressed to respondent CSC Chairperson Karina
Constantino-David which was marked Confidential and sent
through a courier service (LBC) from a certain Alan San Pascual
of Bagong Silang, Caloocan City, was received by the Integrated
Records Management Office (IRMO) at the CSC Central Office.
Following office practice in which documents marked Confidential
are left unopened and instead sent to the addressee, the aforesaid
letter was given directly to Chairperson David.
The letter-complaint reads:
The Chairwoman

PALISOC & SARMIENTO

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

I have known that a person have been lawyered by one of your

attorney in the Region 4 office. He is the chief of the Mamamayan
muna hindi mamaya na division. He have been helping many who
have pending cases in the CSC. The justice in our govt system will
not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being
tainted.
employee[3]

Concerned Govt

Chairperson David immediately formed a team of four personnel

with background in information technology (IT), and issued a memo
directing them to conduct an investigation and specifically to back
up all the files in the computers found in the Mamamayan Muna
(PALD) and Legal divisions.[4] After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon
City. Upon their arrival thereat around 5:30 p.m., the team
informed the officials of the CSC-ROIV, respondents Director IV
Lydia Castillo (Director Castillo) and Director III Engelbert Unite
(Director Unite) of Chairperson Davids directive.
The backing-up of all files in the hard disk of computers at the PALD
and Legal Services Division (LSD) was witnessed by several
employees, together with Directors Castillo and Unite who closely
monitored said activity. At around 6:00 p.m., Director Unite sent
text messages to petitioner and the head of LSD, who were both
out of the office at the time, informing them of the ongoing copying
of computer files in their divisions upon orders of the CSC Chair.
The text messages received by petitioner read:
Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs
of PALD and LSD per instruction of the Chairman. If you can make it
here now it would be better.

314 | P a g e

All PCs Of PALD and LSD are being backed up per memo of the
chair.
CO IT people arrived just now for this purpose. We were not also
informed about this.
We cant do anything about it its a directive from chair.
Memo of the chair was referring to an anonymous complaint; ill
send a copy of the memo via mms[5]
Petitioner replied also thru text message that he was leaving the
matter to Director Unite and that he will just get a lawyer. Another
text message received by petitioner from PALD staff also reported
the presence of the team from CSC main office: Sir may mga taga
C.O. daw sa kuarto natin.[6] At around 10:00 p.m. of the same
day, the investigating team finished their task. The next day, all
the computers in the PALD were sealed and secured for the
purpose of preserving all the files stored therein. Several diskettes
containing the back-up files sourced from the hard disk of PALD and
LSD computers were turned over to Chairperson David. The
contents of the diskettes were examined by the CSCs Office for
Legal Affairs (OLA). It was found that most of the files in the 17
diskettes containing files copied from the computer assigned to and
being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters[7] in connection with administrative
cases in the CSC and other tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause Order[8] dated January
11, 2007, requiring the petitioner, who had gone on extended
leave, to submit his explanation or counter-affidavit within five days
from notice.
Evaluating the subject documents obtained from petitioners
personal files, Chairperson David made the following observations:
Most of the foregoing files are drafts of legal pleadings or
documents that are related to or connected with administrative
cases that may broadly be lumped as pending either in the CSCRO
No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is
also of note that most of these draft pleadings are for and on
behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one
who prepared them was knowingly, deliberately and willfully aiding
and advancing interests adverse and inimical to the interest of the
CSC as the central personnel agency of the government tasked to
discipline misfeasance and malfeasance in the government service.
The number of pleadings so prepared further demonstrates that

PALISOC & SARMIENTO

such person is not merely engaged in an isolated practice but

pursues it with seeming regularity. It would also be the height of
naivete or credulity, and certainly against common human
experience, to believe that the person concerned had engaged in
this customary practice without any consideration, and in fact, one
of the retrieved files (item 13 above) appears to insinuate the
collection of fees. That these draft pleadings were obtained from
the computer assigned to Pollo invariably raises the presumption
that he was the one responsible or had a hand in their drafting or
preparation since the computer of origin was within his direct
control and disposition.[9]
Petitioner filed his Comment, denying that he is the person referred
to in the anonymous letter-complaint which had no attachments to
it, because he is not a lawyer and neither is he lawyering for
people with cases in the CSC. He accused CSC officials of
conducting a fishing expedition when they unlawfully copied and
printed personal files in his computer, and subsequently asking him
to submit his comment which violated his right against selfincrimination. He asserted that he had protested the unlawful
taking of his computer done while he was on leave, citing the letter
dated January 8, 2007 in which he informed Director Castillo that
the files in his computer were his personal files and those of his
sister, relatives, friends and some associates and that he is not
authorizing their sealing, copying, duplicating and printing as these
would violate his constitutional right to privacy and protection
against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use
and ownership of the computer issued under a Memorandum of
Receipt (MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for personal purposes. As
to the anonymous letter, petitioner argued that it is not actionable
as it failed to comply with the requirements of a formal complaint
under the Uniform Rules on Administrative Cases in the Civil
Service (URACC). In view of the illegal search, the files/documents
copied from his computer without his consent is thus inadmissible
as evidence, being fruits of a poisonous tree.[10]
On February 26, 2007, the CSC issued Resolution No. 070382[11]
finding prima facie case against the petitioner and charging him
with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of R.A. No. 6713 (Code of
Conduct and Ethical Standards for Public Officials and Employees).
Petitioner was directed to submit his answer under oath within five
days from notice and indicate whether he elects a formal
investigation. Since the charges fall under Section 19 of the
URACC, petitioner was likewise placed under 90 days preventive

315 | P a g e

suspension effective immediately upon receipt of the resolution.

Petitioner received a copy of Resolution No. 070382 on March 1,
2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss
and/or to Defer) assailing the formal charge as without basis having
proceeded from an illegal search which is beyond the authority of
the CSC Chairman, such power pertaining solely to the court.
Petitioner reiterated that he never aided any people with pending
cases at the CSC and alleged that those files found in his computer
were prepared not by him but by certain persons whom he
permitted, at one time or another, to make use of his computer out
of close association or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted his own files to
be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter
being Atty. Solosas client who attested that petitioner had nothing
to do with the pleadings or bill for legal fees because in truth he
owed legal fees to Atty. Solosa and not to petitioner. Petitioner
contended that the case should be deferred in view of the
prejudicial question raised in the criminal complaint he filed before
the Ombudsman against Director Buensalida, whom petitioner
believes had instigated this administrative case. He also prayed for
the lifting of the preventive suspension imposed on him. In its
Resolution No. 070519[12] dated March 19, 2007, the CSC denied
the omnibus motion. The CSC resolved to treat the said motion as
petitioners answer.
On March 14, 2007, petitioner filed an Urgent Petition[13] under
Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224,
assailing both the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as having been
issued with grave abuse of discretion amounting to excess or total
absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors
Racquel D.G. Buensalida (Chief of Staff, Office of the CSC
Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the
Ombudsman, and a separate complaint for disbarment against
Director Buensalida.[14]
On April 17, 2007, petitioner received a notice of hearing from the
CSC setting the formal investigation of the case on April 30, 2007.
On April 25, 2007, he filed in the CA an Urgent Motion for the
issuance of TRO and preliminary injunction.[15] Since he failed to
attend the pre-hearing conference scheduled on April 30, 2007, the
CSC reset the same to May 17, 2007 with warning that the failure of
petitioner and/or his counsel to appear in the said pre-hearing
conference shall entitle the prosecution to proceed with the formal

PALISOC & SARMIENTO

investigation ex-parte.[16] Petitioner moved to defer or to reset

the pre-hearing conference, claiming that the investigation
proceedings should be held in abeyance pending the resolution of
his petition by the CA. The CSC denied his request and again
scheduled the pre-hearing conference on May 18, 2007 with similar
warning on the consequences of petitioner and/or his counsels
non-appearance.[17] This prompted petitioner to file another
motion in the CA, to cite the respondents, including the hearing
officer, in indirect contempt.[18]
On June 12, 2007, the CSC issued Resolution No. 071134[19]
denying petitioners motion to set aside the denial of his motion to
defer the proceedings and to inhibit the designated hearing officer,
Atty. Bernard G. Jimenez. The hearing officer was directed to
proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the
motion of the prosecution, petitioner was deemed to have waived
his right to the formal investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,[20] the
dispositive part of which reads:
WHEREFORE, foregoing premises considered, the Commission
hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of
Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of Republic Act 6713. He is
meted the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties, namely, disqualification to hold public office,
forfeiture of retirement benefits, cancellation of civil service
eligibilities and bar from taking future civil service examinations.
[21]
On the paramount issue of the legality of the search conducted on
petitioners computer, the CSC noted the dearth of jurisprudence
relevant to the factual milieu of this case where the government as
employer invades the private files of an employee stored in the
computer assigned to him for his official use, in the course of initial
investigation of possible misconduct committed by said employee
and without the latters consent or participation. The CSC thus
turned to relevant rulings of the United States Supreme Court, and
cited the leading case of OConnor v. Ortega[22] as authority for
the view that government agencies, in their capacity as employers,
rather than law enforcers, could validly conduct search and seizure
in the governmental workplace without meeting the probable
cause or warrant requirement for search and seizure. Another
ruling cited by the CSC is the more recent case of United States v.

316 | P a g e

Mark L. Simons[23] which declared that the federal agencys

computer use policy foreclosed any inference of reasonable
expectation of privacy on the part of its employees. Though the
Court therein recognized that such policy did not, at the same time,
erode the respondents legitimate expectation of privacy in the
office in which the computer was installed, still, the warrantless
search of the employees office was upheld as valid because a
government employer is entitled to conduct a warrantless search
pursuant to an investigation of work-related misconduct provided
the search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC
held that petitioner has no reasonable expectation of privacy with
regard to the computer he was using in the regional office in view
of the CSC computer use policy which unequivocally declared that a
CSC employee cannot assert any privacy right to a computer
assigned to him. Even assuming that there was no such
administrative policy, the CSC was of the view that the search of
petitioners
computer
successfully
passed
the
test
of
reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it
pursued the search in its capacity as government employer and
that it was undertaken in connection with an investigation involving
work-related misconduct, which exempts it from the warrant
requirement under the Constitution.
With the matter of
admissibility of the evidence having been resolved, the CSC then
ruled that the totality of evidence adequately supports the charges
of grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service and violation of R.A. No. 6713 against the
petitioner. These grave infractions justified petitioners dismissal
from the service with all its accessory penalties.
In his Memorandum[24] filed in the CA, petitioner moved to
incorporate the above resolution dismissing him from the service in
his main petition, in lieu of the filing of an appeal via a Rule 43
petition. In a subsequent motion, he likewise prayed for the
inclusion of Resolution No. 071800[25] which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition
for certiorari after finding no grave abuse of discretion committed
by respondents CSC officials. The CA held that: (1) petitioner was
not charged on the basis of the anonymous letter but from the
initiative of the CSC after a fact-finding investigation was
conducted and the results thereof yielded a prima facie case
against him; (2) it could not be said that in ordering the back-up of
files in petitioners computer and later confiscating the same,

PALISOC & SARMIENTO

Chairperson David had encroached on the authority of a judge in

view of the CSC computer policy declaring the computers as
government property and that employee-users thereof have no
reasonable expectation of privacy in anything they create, store,
send, or receive on the computer system; and (3) there is nothing
contemptuous in CSCs act of proceeding with the formal
investigation as there was no restraining order or injunction issued
by the CA.
His motion for reconsideration having been denied by the CA,
petitioner brought this appeal arguing that
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND
COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292
WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY
PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE
ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED
PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE
HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE,
AGAINST
SELF-INCRIMINATION,
BY
VIRTUE
OF
OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM
SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND
NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY
MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED
BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL
AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH
DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE
EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE
OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF
DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN
THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES
INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS
PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT

317 | P a g e

DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES

AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2
OF THE 1987 PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL
OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO
SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE
ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC
RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT
RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE
ANCILLARY PRAYER FOR TRO.[26]
Squarely raised by the petitioner is the legality of the search
conducted on his office computer and the copying of his personal
files without his knowledge and consent, alleged as a transgression
on his constitutional right to privacy.
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure under Section 2, Article III
of the 1987 Constitution,[27] which provides:
SEC. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
The constitutional guarantee is not a prohibition of all searches and
seizures but only of unreasonable searches and seizures.[28]
But to fully understand this concept and application for the purpose
of resolving the issue at hand, it is essential that we examine the
doctrine in the light of pronouncements in another jurisdiction. As
the Court declared in People v. Marti[29]:
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:
The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures
shall not be violated, and no warrants shall issue but upon probable

PALISOC & SARMIENTO

cause, to be determined by the judge after examination under oath

or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and
the persons or things to be seized. (Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth Amendment to
the United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this
jurisdiction.[30]
In the 1967 case of Katz v. United States,[31] the US Supreme
Court held that the act of FBI agents in electronically recording a
conversation made by petitioner in an enclosed public telephone
booth violated his right to privacy and constituted a search and
seizure. Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone
call, the protection of the Fourth Amendment extends to such area.
In the concurring opinion of Mr. Justice Harlan, it was further noted
that the existence of privacy right under prior decisions involved a
two-fold requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as
reasonable (objective).[32]
In Mancusi v. DeForte[33] which addressed the reasonable
expectations of private employees in the workplace, the US
Supreme Court held that a union employee had Fourth Amendment
rights with regard to an office at union headquarters that he shared
with other union officials, even as the latter or their guests could
enter the office. The Court thus recognized that employees may
have a reasonable expectation of privacy against intrusions by
police.
That the Fourth Amendment equally applies to a government
workplace was addressed in the 1987 case of OConnor v.
Ortega[34] where a physician, Dr. Magno Ortega, who was
employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of
mismanagement of the psychiatric residency program, sexual
harassment of female hospital employees and other irregularities
involving his private patients under the state medical aid program,
searched his office and seized personal items from his desk and
filing cabinets. In that case, the Court categorically declared that
[i]ndividuals do not lose Fourth Amendment rights merely because
they work for the government instead of a private employer.[35]
A plurality of four Justices concurred that the correct analysis has

318 | P a g e

two steps: first, because some government offices may be so open

to fellow employees or the public that no expectation of privacy is
reasonable, a court must consider [t]he operational realities of
the workplace in order to determine whether an employees
Fourth Amendment rights are implicated; and next, where an
employee has a legitimate privacy expectation, an employers
intrusion on that expectation for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct,
should be judged by the standard of reasonableness under all the
circumstances.[36]
On the matter of government employees reasonable expectations
of privacy in their workplace, OConnor teaches:
x x x Public employees expectations of privacy in their offices,
desks, and file cabinets, like similar expectations of employees in
the private sector, may be reduced by virtue of actual office
practices and procedures, or by legitimate regulation. x x x The
employees expectation of privacy must be assessed in the context
of the employment relation. An office is seldom a private enclave
free from entry by supervisors, other employees, and business and
personal invitees. Instead, in many cases offices are continually
entered by fellow employees and other visitors during the workday
for conferences, consultations, and other work-related visits.
Simply put, it is the nature of government offices that others
such as fellow employees, supervisors, consensual visitors, and the
general public may have frequent access to an individuals office.
We agree with JUSTICE SCALIA that [c]onstitutional protection
against unreasonable searches by the government does not
disappear merely because the government has the right to make
reasonable intrusions in its capacity as employer, x x x but some
government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable. x x x Given the
great variety of work environments in the public sector, the
question of whether an employee has a reasonable expectation of
privacy must be addressed on a case-by-case basis.[37] (Citations
omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US
Supreme Court declared that Dr. Ortegas Fourth Amendment rights
are implicated only if the conduct of the hospital officials infringed
an expectation of privacy that society is prepared to consider as
reasonable. Given the undisputed evidence that respondent Dr.
Ortega did not share his desk or file cabinets with any other
employees, kept personal correspondence and other private items
in his own office while those work-related files (on physicians in
residency training) were stored outside his office, and there being

PALISOC & SARMIENTO

no evidence that the hospital had established any reasonable

regulation or policy discouraging employees from storing personal
papers and effects in their desks or file cabinets (although the
absence of such a policy does not create any expectation of privacy
where it would not otherwise exist), the Court concluded that Dr.
Ortega has a reasonable expectation of privacy at least in his desk
and file cabinets.[38]
Proceeding to the next inquiry as to whether the search conducted
by hospital officials was reasonable, the OConnor plurality decision
discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of
privacy in his office, the Court of Appeals simply concluded without
discussion that the searchwas not a reasonable search under the
fourth amendment. x x x [t]o hold that the Fourth Amendment
applies to searches conducted by [public employers] is only to
begin the inquiry into the standards governing such searches
[W]hat is reasonable depends on the context within which a search
takes place. x x x Thus, we must determine the appropriate
standard of reasonableness applicable to the search.
A
determination of the standard of reasonableness applicable to a
particular class of searches requires balanc[ing] the nature and
quality of the intrusion on the individuals Fourth Amendment
interests against the importance of the governmental interests
alleged to justify the intrusion. x x x In the case of searches
conducted by a public employer, we must balance the invasion of
the employees legitimate expectations of privacy against the
governments need for supervision, control, and the efficient
operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever
the employer wished to enter an employees office, desk, or file
cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome.
Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar
with such procedures, is simply unreasonable. In contrast to other
circumstances in which we have required warrants, supervisors in
offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business of the agency.
Under these circumstances, the imposition of a warrant
requirement would conflict with the common-sense realization that

319 | P a g e

government offices could not function if every employment

decision became a constitutional matter. x x x
xxxx
The governmental interest justifying work-related intrusions by
public employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers
were required to have probable cause before they entered an
employees desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of
probable cause, rooted as it is in the criminal investigatory context,
much meaning when the purpose of a search is to retrieve a file for
work-related reasons. Similarly, the concept of probable cause has
little meaning for a routine inventory conducted by public
employers for the purpose of securing state property. x x x To
ensure the efficient and proper operation of the agency, therefore,
public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant
to an investigation of work-related employee misconduct. Even
when employers conduct an investigation, they have an interest
substantially different from the normal need for law enforcement.
x x x Public employers have an interest in ensuring that their
agencies operate in an effective and efficient manner, and the work
of these agencies inevitably suffers from the inefficiency,
incompetence, mismanagement, or other work-related misfeasance
of its employees. Indeed, in many cases, public employees are
entrusted with tremendous responsibility, and the consequences of
their misconduct or incompetence to both the agency and the
public interest can be severe. In contrast to law enforcement
officials, therefore, public employers are not enforcers of the
criminal law; instead, public employers have a direct and overriding
interest in ensuring that the work of the agency is conducted in a
proper and efficient manner. In our view, therefore, a probable
cause requirement for searches of the type at issue here would
impose intolerable burdens on public employers. The delay in
correcting the employee misconduct caused by the need for
probable cause rather than reasonable suspicion will be translated
into tangible and often irreparable damage to the agencys work,
and ultimately to the public interest. x x x
xxxx

PALISOC & SARMIENTO

In sum, we conclude that the special needs, beyond the normal

need for law enforcement make theprobable-cause requirement
impracticable, x x x for legitimate, work-related noninvestigatory
intrusions as well as investigations of work-related misconduct. A
standard of reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation
of the workplace, nor authorize arbitrary intrusions upon the
privacy of public employees. We hold, therefore, that public
employer intrusions on the constitutionally protected privacy
interests of government employees for noninvestigatory, workrelated purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness
under all the circumstances. Under this reasonableness standard,
both the inception and the scope of the intrusion must be
reasonable:
Determining the reasonableness of any search involves a twofold
inquiry: first, one must consider whether theaction was justified
at its inception, x x x ; second, one must determine whether the
search as actually conducted was reasonably related in scope to
the circumstances which justified the interference in the first
place, x x x
Ordinarily, a search of an employees office by a supervisor will be
justified at its inception when there are reasonable grounds for
suspecting that the search will turn up evidence that the employee
is guilty of work-related misconduct, or that the search is necessary
for a noninvestigatory work-related purpose such as to retrieve a
needed file. x x x The search will be permissible in its scope when
the measures adopted are reasonably related to the objectives of
the search and not excessively intrusive in light of the nature of
the [misconduct]. x x x[39] (Citations omitted; emphasis
supplied.)
Since the District Court granted summary judgment without a
hearing on the factual dispute as to the character of the search and
neither was there any finding made as to the scope of the search
that was undertaken, the case was remanded to said court for the
determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the
search and its scope.
In OConnor the Court recognized that special needs authorize
warrantless searches involving public employees for work-related
reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employees
reasonable expectation of privacy. This reasonableness test

320 | P a g e

implicates neither probable cause nor the warrant requirement,

which are related to law enforcement.[40]
OConnor was applied in subsequent cases raising issues on
employees privacy rights in the workplace. One of these cases
involved a government employers search of an office computer,
United States v. Mark L. Simons[41] where the defendant Simons,
an employee of a division of the Central Intelligence Agency (CIA),
was convicted of receiving and possessing materials containing
child pornography. Simons was provided with an office which he
did not share with anyone, and a computer with Internet access.
The agency had instituted a policy on computer use stating that
employees were to use the Internet for official government
business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that
the agency will periodically audit, inspect, and/or monitor the users
Internet access as deemed appropriate. CIA agents instructed its
contractor for the management of the agencys computer network,
upon initial discovery of prohibited internet activity originating from
Simons computer, to conduct a remote monitoring and
examination of Simons computer. After confirming that Simons
had indeed downloaded pictures that were pornographic in nature,
all the files on the hard drive of Simons computer were copied from
a remote work station. Days later, the contractors representative
finally entered Simons office, removed the original hard drive on
Simons computer, replaced it with a copy, and gave the original to
the agency security officer. Thereafter, the agency secured
warrants and searched Simons office in the evening when Simons
was not around. The search team copied the contents of Simons
computer; computer diskettes found in Simons desk drawer;
computer files stored on the zip drive or on zip drive diskettes;
videotapes;
and
various
documents,
including
personal
correspondence. At his trial, Simons moved to suppress these
evidence, arguing that the searches of his office and computer
violated his Fourth Amendment rights. After a hearing, the district
court denied the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that
the searches of Simons computer and office did not violate his
Fourth Amendment rights and the first search warrant was valid. It
held that the search remains valid under the OConnor exception to
the warrant requirement because evidence of the crime was
discovered in the course of an otherwise proper administrative
inspection. Simons violation of the agencys Internet policy
happened also to be a violation of criminal law; this does not mean
that said employer lost the capacity and interests of an employer.
The warrantless entry into Simons office was reasonable under the

PALISOC & SARMIENTO

Fourth Amendment standard announced in OConnor because at

the inception of the search, the employer had reasonable grounds
for suspecting that the hard drive would yield evidence of
misconduct, as the employer was already aware that Simons had
misused his Internet access to download over a thousand
pornographic images. The retrieval of the hard drive was
reasonably related to the objective of the search, and the search
was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate
expectation of privacy with regard to the files in his computer.
x x x To establish a violation of his rights under the Fourth
Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item seized. x x
x And, in order to prove a legitimate expectation of privacy, Simons
must show that his subjective expectation of privacy is one that
society is prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons computer
did not violate his Fourth Amendment rights because, in light of the
Internet policy, Simons lacked a legitimate expectation of privacy in
the files downloaded from the Internet. Additionally, we conclude
that Simons Fourth Amendment rights were not violated by FBIS
retrieval of Simons hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard
to the record or fruits of his Internet use in light of the FBIS Internet
policy. The policy clearly stated that FBIS would audit, inspect,
and/or monitor employees use of the Internet, including all file
transfers, all websites visited, and all e-mail messages, as deemed
appropriate. x x x This policy placed employees on notice that
they could not reasonably expect that their Internet activity would
be private. Therefore, regardless of whether Simons subjectively
believed that the files he transferred from the Internet were private,
such a belief was not objectively reasonable after FBIS notified him
that it would be overseeing his Internet use. x x x
Accordingly, FBIS actions in remotely searching and seizing the
computer files Simons downloaded from the Internet did not violate
the Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate
expectation of privacy in his office. x x x Here, Simons has shown

321 | P a g e

that he had an office that he did not share. As noted above, the
operational realities of Simons workplace may have diminished his
legitimate privacy expectations. However, there is no evidence in
the record of any workplace practices, procedures, or regulations
that had such an effect. We therefore conclude that, on this record,
Simons possessed a legitimate expectation of privacy in his office.

Applying the analysis and principles announced in OConnor and

Simons to the case at bar, we now address the following questions:
(1) Did petitioner have a reasonable expectation of privacy in his
office and computer files?; and (2) Was the search authorized by
the CSC Chair, the copying of the contents of the hard drive on
petitioners computer reasonable in its inception and scope?

xxxx

In this inquiry, the relevant surrounding circumstances to consider

include (1) the employees relationship to the item seized; (2)
whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to
maintain his privacy in the item. These factors are relevant to
both the subjective and objective prongs of the reasonableness
inquiry, and we consider the two questions together.[44] Thus,
where the employee used a password on his computer, did not
share his office with co-workers and kept the same locked, he had a
legitimate expectation of privacy and any search of that space and
items located therein must comply with the Fourth Amendment.
[45]

In the final analysis, this case involves an employees supervisor

entering the employees government office and retrieving a piece
of government equipment in which the employee had absolutely no
expectation of privacy equipment that the employer knew
contained evidence of crimes committed by the employee in the
employees office. This situation may be contrasted with one in
which the criminal acts of a government employee were unrelated
to his employment. Here, there was a conjunction of the conduct
that violated the employers policy and the conduct that violated
the criminal law. We consider that FBIS intrusion into Simons
office to retrieve the hard drive is one in which a reasonable
employer might engage. x x x[42] (Citations omitted; emphasis
supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs
Board[43] which involved the constitutionality of a provision in R.A.
No. 9165 requiring mandatory drug testing of candidates for public
office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged
before the prosecutors office with certain offenses, have also
recognized the fact that there may be such legitimate intrusion of
privacy in the workplace.
The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement.
The employees privacy interest in an office is to a large extent
circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation
in a regulated office environment is, in fine, reduced; and a degree
of impingement upon such privacy has been upheld. (Emphasis
supplied.)

PALISOC & SARMIENTO

We answer the first in the negative. Petitioner failed to prove that

he had an actual (subjective) expectation of privacy either in his
office or government-issued computer which contained his personal
files. Petitioner did not allege that he had a separate enclosed
office which he did not share with anyone, or that his office was
always locked and not open to other employees or visitors. Neither
did he allege that he used passwords or adopted any means to
prevent other employees from accessing his computer files. On the
contrary, he submits that being in the public assistance office of
the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even
allowed to use his computer which to him seemed a trivial request.
He described his office as full of people, his friends, unknown
people and that in the past 22 years he had been discharging his
functions at the PALD, he is personally assisting incoming clients,
receiving documents, drafting cases on appeals, in charge of
accomplishment report, Mamamayan Muna Program, Public Sector
Unionism, Correction of name, accreditation of service, and hardly
had anytime for himself alone, that in fact he stays in the office as
a paying customer.[46] Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that
society would recognize as reasonable.
Moreover, even assuming arguendo, in the absence of allegation or
proof of the aforementioned factual circumstances, that petitioner
had at least a subjective expectation of privacy in his computer as

322 | P a g e

he claims, such is negated by the presence of policy regulating the

use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP)
explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service
Commission and may be used only for legitimate business
purposes.
2. Users shall be permitted access to Computer Resources to assist
them in the performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be
revoked at any given time.
xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the
Commission shall not have an expectation of privacy in anything
they create, store, send, or receive on the computer system.
The Head of the Office for Recruitment, Examination and
Placement shall select and assign Users to handle the confidential
examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to
privacy in anything they create, store, send, or receive on the
computer through the Internet or any other computer network.
Users understand that the CSC may use human or automated
means to monitor the use of its Computer Resources.
6.
Non-exclusivity of Computer Resources. A computer resource
is not a personal property or for the exclusive use of a User to
whom a memorandum of receipt (MR) has been issued. It can be
shared or operated by other users. However, he is accountable
therefor and must insure its care and maintenance.
xxxx
Passwords
12.
Responsibility for passwords. Users shall be responsible for
safeguarding their passwords for access to the computer system.
Individual passwords shall not be printed, stored online, or given to

PALISOC & SARMIENTO

others. Users shall be responsible for all transactions made using

their passwords. No User may access the computer system with
another Users password or account.
13.
Passwords do not imply privacy. Use of passwords to gain
access to the computer system or to encode particular files or
messages does not imply that Users have an expectation of privacy
in the material they create or receive on the computer system. The
Civil Service Commission has global passwords that permit access
to all materials stored on its networked computer system
regardless of whether those materials have been encoded with a
particular Users password. Only members of the Commission shall
authorize the application of the said global passwords.
x x x x[47] (Emphasis supplied.)
The CSC in this case had implemented a policy that put its
employees on notice that they have no expectation of privacy in
anything they create, store, send or receive on the office
computers, and that the CSC may monitor the use of the computer
resources using both automated or human means. This implies
that on-the-spot inspections may be done to ensure that the
computer resources were used only for such legitimate business
purposes.
One of the factors stated in OConnor which are relevant in
determining whether an employees expectation of privacy in the
workplace is reasonable is the existence of a workplace privacy
policy.[48] In one case, the US Court of Appeals Eighth Circuit held
that a state university employee has not shown that he had a
reasonable expectation of privacy in his computer files where the
universitys computer policy, the computer user is informed not to
expect privacy if the university has a legitimate reason to conduct
a search. The user is specifically told that computer files, including
e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee
thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer
for work-related materials.[49]
As to the second point of inquiry on the reasonableness of the
search conducted on petitioners computer, we answer in the
affirmative.
The search of petitioners computer files was conducted in
connection with investigation of work-related misconduct prompted
by an anonymous letter-complaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV where the head of the

323 | P a g e

Mamamayan Muna Hindi Mamaya Na division is supposedly

lawyering for individuals with pending cases in the CSC.
Chairperson David stated in her sworn affidavit:
8.
That prior to this, as early as 2006, the undersigned has
received several text messages from unknown sources adverting to
certain anomalies in Civil Service Commission Regional Office IV
(CSCRO IV) such as, staff working in another government agency,
selling cases and aiding parties with pending cases, all done
during office hours and involved the use of government properties;
9.
That said text messages were not investigated for lack of any
verifiable leads and details sufficient to warrant an investigation;
10.
That the anonymous letter provided the lead and details as it
pinpointed the persons and divisions involved in the alleged
irregularities happening in CSCRO IV;
11.
That in view of the seriousness of the allegations of
irregularities happening in CSCRO IV and its effect on the integrity
of the Commission, I decided to form a team of Central Office staff
to back up the files in the computers of the Public Assistance and
Liaison Division (PALD) and Legal Division;
x x x x[50]
A search by a government employer of an employees office is
justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is guilty
of work-related misconduct.[51] Thus, in the 2004 case decided by
the US Court of Appeals Eighth Circuit, it was held that where a
government agencys computer use policy prohibited electronic
messages with pornographic content and in addition expressly
provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and
technology, the government employee had no legitimate
expectation of privacy as to the use and contents of his office
computer, and therefore evidence found during warrantless search
of the computer was admissible in prosecution for child
pornography. In that case, the defendant employees computer
hard drive was first remotely examined by a computer information
technician after his supervisor received complaints that he was
inaccessible and had copied and distributed non-work-related email messages throughout the office. When the supervisor
confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of the
agency, his computer tower and floppy disks were taken and
examined. A formal administrative investigation ensued and later
search warrants were secured by the police department. The initial
remote search of the hard drive of petitioners computer, as well as
the subsequent warrantless searches was held as valid under the

PALISOC & SARMIENTO

OConnor ruling that a public employer can investigate work-related

misconduct so long as any search is justified at inception and is
reasonably related in scope to the circumstances that justified it in
the first place.[52]
Under the facts obtaining, the search conducted on petitioners
computer was justified at its inception and scope. We quote with
approval the CSCs discussion on the reasonableness of its actions,
consistent as it were with the guidelines established by OConnor:
Even conceding for a moment that there is no such administrative
policy, there is no doubt in the mind of the Commission that the
search of Pollos computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as
enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity
as a government employer and that it was undertaken in
connection with an investigation involving a work-related
misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was
received recounting that a certain division chief in the CSCRO No.
IV was lawyering for parties having pending cases with the said
regional office or in the Commission. The nature of the imputation
was serious, as it was grievously disturbing. If, indeed, a CSC
employee was found to be furtively engaged in the practice of
lawyering for parties with pending cases before the Commission
would be a highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of doubt
upon the institutional integrity of the Commission as a quasijudicial agency, and in the process, render it less effective in
fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative
tribunal must not only be actually impartial but must be seen to be
so, otherwise the general public would not have any trust and
confidence in it.
Considering the damaging nature of the accusation, the
Commission had to act fast, if only to arrest or limit any possible
adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted
involving the computer resources in the concerned regional office.
That it was the computers that were subjected to the search was
justified since these furnished the easiest means for an employee
to encode and store documents. Indeed, the computers would be a
likely starting point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of computer files, that is,
they could easily be destroyed at a click of a button, necessitated

324 | P a g e

drastic and immediate action. Pointedly, to impose the need to

comply with the probable cause requirement would invariably
defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected
the warrantless search in an open and transparent manner.
Officials and some employees of the regional office, who happened
to be in the vicinity, were on hand to observe the process until its
completion. In addition, the respondent himself was duly notified,
through text messaging, of the search and the concomitant
retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search
done on computer assigned to Pollo was not, in any way, vitiated
with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed
at ensuring its operational effectiveness and efficiency by going
after
the
work-related
misfeasance
of
its
employees.
Consequently, the evidence derived from the questioned search
are deemed admissible.[53]
Petitioners claim of violation of his constitutional right to privacy
must necessarily fail. His other argument invoking the privacy of
communication and correspondence under Section 3(1), Article III
of the 1987 Constitution is also untenable considering the
recognition accorded to certain legitimate intrusions into the
privacy of employees in the government workplace under the
aforecited authorities. We likewise find no merit in his contention
that OConnor and Simons are not relevant because the present
case does not involve a criminal offense like child pornography. As
already mentioned, the search of petitioners computer was
justified there being reasonable ground for suspecting that the files
stored therein would yield incriminating evidence relevant to the
investigation being conducted by CSC as government employer of
such misconduct subject of the anonymous complaint. This
situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in OConnor.
The Court is not unaware of our decision in Anonymous LetterComplaint against Atty. Miguel Morales, Clerk of Court, Metropolitan
Trial Court of Manila[54] involving a branch clerk (Atty. Morales)
who was investigated on the basis of an anonymous letter alleging
that he was consuming his working hours filing and attending to
personal cases, using office supplies, equipment and utilities. The
OCA conducted a spot investigation aided by NBI agents. The team
was able to access Atty. Morales personal computer and print two
documents stored in its hard drive, which turned out to be two

PALISOC & SARMIENTO

pleadings, one filed in the CA and another in the RTC of Manila,

both in the name of another lawyer. Atty. Morales computer was
seized and taken in custody of the OCA but was later ordered
released on his motion, but with order to the MISO to first retrieve
the files stored therein. The OCA disagreed with the report of the
Investigating Judge that there was no evidence to support the
charge against Atty. Morales as no one from the OCC personnel who
were interviewed would give a categorical and positive statement
affirming the charges against Atty. Morales, along with other court
personnel also charged in the same case. The OCA recommended
that Atty. Morales should be found guilty of gross misconduct. The
Court En Banc held that while Atty. Morales may have fallen short of
the exacting standards required of every court employee, the Court
cannot use the evidence obtained from his personal computer
against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence
to support the claim of OCA that they were able to obtain the
subject pleadings with the consent of Atty. Morales, as in fact the
latter immediately filed an administrative case against the persons
who conducted the spot investigation, questioning the validity of
the investigation and specifically invoking his constitutional right
against unreasonable search and seizure. And as there is no other
evidence, apart from the pleadings, retrieved from the unduly
confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the
charges against him for insufficiency of evidence.
The above case is to be distinguished from the case at bar
because, unlike the former which involved a personal computer of a
court employee, the computer from which the personal files of
herein petitioner were retrieved is a government-issued computer,
hence government property the use of which the CSC has absolute
right to regulate and monitor. Such relationship of the petitioner
with the item seized (office computer) and other relevant factors
and
circumstances
under
American
Fourth
Amendment
jurisprudence, notably the existence of CSC MO 10, S. 2007 on
Computer Use Policy, failed to establish that petitioner had a
reasonable expectation of privacy in the office computer assigned
to him.
Having determined that the personal files copied from the office
computer of petitioner are admissible in the administrative case
against him, we now proceed to the issue of whether the CSC was
correct in finding the petitioner guilty of the charges and dismissing
him from the service.

325 | P a g e

Well-settled is the rule that the findings of fact of quasi-judicial

agencies, like the CSC, are accorded not only respect but even
finality if such findings are supported by substantial evidence.
Substantial evidence is such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion,
even if other equally reasonable minds might conceivably opine
otherwise.[55]
The CSC based its findings on evidence consisting of a substantial
number of drafts of legal pleadings and documents stored in his
office computer, as well as the sworn affidavits and testimonies of
the witnesses it presented during the formal investigation.
According to the CSC, these documents were confirmed to be
similar or exactly the same content-wise with those on the case
records of some cases pending either with CSCRO No. IV, CSC-NCR
or the Commission Proper. There were also substantially similar
copies of those pleadings filed with the CA and duly furnished the
Commission.
Further, the CSC found the explanation given by
petitioner, to the effect that those files retrieved from his computer
hard drive actually belonged to his lawyer friends Estrellado and
Solosa whom he allowed the use of his computer for drafting their
pleadings in the cases they handle, as implausible and doubtful
under the circumstances. We hold that the CSCs factual finding
regarding the authorship of the subject pleadings and misuse of the
office computer is well-supported by the evidence on record, thus:
It is also striking to note that some of these documents were in the
nature of pleadings responding to the orders, decisions or
resolutions of these offices or directly in opposition to them such as
a petition for certiorari or a motion for reconsideration of CSC
Resolution. This indicates that the author thereof knowingly and
willingly participated in the promotion or advancement of the
interests of parties contrary or antagonistic to the Commission.
Worse, the appearance in one of the retrieved documents the
phrase, Eric N. Estr[e]llado, Epal kulang ang bayad mo, lends
plausibility to an inference that the preparation or drafting of the
legal pleadings was pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing
the same for the money a legal mercenary selling or purveying
his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the
computer of Pollo raises the presumption that he was the author
thereof. This is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita Reyes,
categorically testified seeing a written copy of one of the pleadings
found in the case records lying on the table of the respondent. This
was the Petition for Review in the case of Estrellado addressed to

PALISOC & SARMIENTO

the Court of Appeals. The said circumstances indubitably

demonstrate that Pollo was secretly undermining the interest of the
Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the
Commission to believe that the documents were the personal files
of some of his friends, including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during the formal
investigation of this case. In fact, Atty. Solosa himself executed a
sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness,
Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the
respondent. Reyes more particularly stated that she worked in
close proximity with Pollo and would have known if Atty. Solosa,
whom she personally knows, was using the computer in question.
Further, Atty. Solosa himself was never presented during the
formal investigation to confirm his sworn statement such that the
same constitutes self-serving evidence unworthy of weight and
credence. The same is true with the other supporting affidavits,
which Pollo submitted.
At any rate, even admitting for a moment the said contention of the
respondent, it evinces the fact that he was unlawfully authorizing
private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of
pleadings, for ends not in conformity with the interests of the
Commission. He was, in effect, acting as a principal by
indispensable cooperationOr at the very least, he should be
responsible for serious misconduct for repeatedly allowing CSC
resources, that is, the computer and the electricity, to be utilized
for purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of
the appellant that the line appearing in one of the documents, Eric
N. Estrellado, Epal kulang ang bayad mo, was a private joke
between the person alluded to therein, Eric N. Estrellado, and his
counsel, Atty. Solosa, and not indicative of anything more sinister.
The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer
assigned to the respondent, unless he had something to do with it?
[56]
Petitioner assails the CA in not ruling that the CSC should not have
entertained an anonymous complaint since Section 8 of CSC
Resolution No. 99-1936 (URACC) requires a verified complaint:

326 | P a g e

Rule II Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or
employee shall not be given due course unless it is in writing and
subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need
not be under oath.
No anonymous complaint shall be entertained unless there is
obvious truth or merit to the allegation therein or supported by
documentary or direct evidence, in which case the person
complained of may be required to comment.
xxxx
We need not belabor this point raised by petitioner. The
administrative complaint is deemed to have been initiated by the
CSC itself when Chairperson David, after a spot inspection and
search of the files stored in the hard drive of computers in the two
divisions adverted to in the anonymous letter -- as part of the
disciplining authoritys own fact-finding investigation and
information-gathering -- found a prima facie case against the
petitioner who was then directed to file his comment. As this Court
held in Civil Service Commission v. Court of Appeals[57] -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O.
No. 292 and Section 8, Rule II of Uniform Rules on Administrative
Cases in the Civil Service, a complaint may be initiated against a
civil service officer or employee by the appropriate disciplining
authority, even without being subscribed and sworn to. Considering
that the CSC, as the disciplining authority for Dumlao, filed the
complaint, jurisdiction over Dumlao was validly acquired. (Emphasis
supplied.)
As to petitioners challenge on the validity of CSC OM 10, S. 2002
(CUP), the same deserves scant consideration. The alleged
infirmity due to the said memorandum order having been issued
solely by the CSC Chair and not the Commission as a collegial body,
upon which the dissent of Commissioner Buenaflor is partly
anchored, was already explained by Chairperson David in her Reply
to the Addendum to Commissioner Buenaflors previous memo
expressing his dissent to the actions and disposition of the
Commission in this case. According to Chairperson David, said
memorandum order was in fact exhaustively discussed, provision
by provision in the January 23, 2002 Commission Meeting, attended
by her and former Commissioners Erestain, Jr. and Valmores.
Hence, the Commission En Banc at the time saw no need to issue
a Resolution for the purpose and further because the CUP being for

PALISOC & SARMIENTO

internal use of the Commission, the practice had been to issue a

memorandum order.[58] Moreover, being an administrative rule
that is merely internal in nature, or which regulates only the
personnel of the CSC and not the public, the CUP need not be
published prior to its effectivity.[59]
In fine, no error or grave abuse of discretion was committed by the
CA in affirming the CSCs ruling that petitioner is guilty of grave
misconduct, dishonesty, conduct prejudicial to the best interest of
the service, and violation of R.A. No. 6713. The gravity of these
offenses justified the imposition on petitioner of the ultimate
penalty of dismissal with all its accessory penalties, pursuant to
existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The
Decision dated October 11, 2007 and Resolution dated February 29,
2008 of the Court of Appeals in CA-G.R. SP No. 98224 are
AFFIRMED.
With costs against the petitioner.
SO ORDERED.
Right To Privacy
The essence of privacy is the "right to be let alone. Liberty in the
constitutional sense must mean more than freedom from unlawful
governmental restraint; it must include privacy as well, if it is to be
a repository of freedom. The right to be let alone is indeed the
beginning of all freedom. (Morfe v. Mutuc, G.R. No. L-20387,
January 31, 1968 citing Justice Douglas dissenting opinion in Public
Utilities Commission v. Pollak 343 U. S. 451(1952)).
In Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, the Supreme
Court ruled that the right to privacy is likewise applicable in our
jurisdiction and is a fundamental right guaranteed by the Philippine
Constitution. The Court stated that:
The right to privacy as such is accorded recognition independently
of its identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always
included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector, which

327 | P a g e

the state can control. Protection of this private sector protection,

in other words, of the dignity and integrity of the individual has
become increasingly important as modern society has developed.
All the forces of a technological age industrialization,
urbanization, and organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society.
In the said case, the Court stated that the right to privacy is both
expressly and implicitly recognized in different provisions of the
Constitution,
specifically
that
of
communication
and
correspondence which shall be inviolable except upon lawful order
of Court or when public safety and order may otherwise require, the
search and seizure clause, and the liberty of abode.
Citing Morfe v. Mutuc, the Supreme Court extensively discussed the
right to privacy in the case of Ople v. Torres, G.R. No. 127685, July
23, 1998. The Court stated that the right to privacy is expressly
recognized in Section 3(1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in the following
provisions of the Bill of Rights;
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.

order of the court. Neither shall the right to travel be impaired

except in the interest of national security, public safety, or public
health as may be provided by law.
Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies
for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.
(See Agustin v. Court of Appeals, G.R. No. 162571, June 15, 2005

The Supreme Court also stated that zones of privacy, similar to

those laid down by U.S. Supreme Court inGriswold v. Connecticut,
81 U.S. 479 (1965), are likewise recognized and protected in our
laws. The Court stated that:
The Civil Code provides that "[e]very person shall respect the
dignity, personality, privacy and peace of mind of his neighbors and
other persons" and punishes as actionable torts several acts by a
person of meddling and prying into the privacy of another. It also
holds a public officer or employee or any private individual liable
for damages for any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime the
violation of secrets by an officer, the revelation of trade and
industrial secrets, and trespass to dwelling. Invasion of privacy is
an offense in special laws like the Anti-Wiretapping Law, the
Secrecy of Bank Deposits Act and the Intellectual Property Code.
The Rules of Court on privileged communication likewise recognize
the privacy of certain information.
(See Marquez v. Desierto, G.R. No. 135882, June 27, 2001)
The right to privacy is likewise recognized in the Anti-Money
Laundering Act (See Republic v. Eugenio, G.R. No. 174629, February
14, 2008)

(See Social Justice Society (SJS) v. Dangerous Drugs Board, G.R.

Nos. 157870, 158633 and 161658, November 3, 2008; Pollo v.
Constantino-David, G.R. No. 181881, October 18, 2011)
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful

PALISOC & SARMIENTO

328 | P a g e

VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF

THE PHILIPPINES, respondent.
G.R. No. 142295 | 2001-05-31

"g) Twenty (20) rds live ammunitions for cal 5.56

"without first having obtained a proper license therefor.

DECISION
"Contrary to law."[2]
PARDO, J.:
Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a
decision of the Court of Appeals[1] affirming with modification the
decision of the Regional Trial Court, Bulacan, Branch 20, Malolos,
and finding him guilty beyond reasonable doubt of violation of P. D.
No. 1866, as amended by Republic Act No. 8294 (illegal possession
of firearms), sentencing him to four (4) years, nine (9) months and
eleven (11) days of prision correccional, as minimum, to six (6)
years, eight (8) months and one (1) day of prision mayor, as
maximum, and to pay a fine of P30,000.00.
On June 17, 1996, Assistant Provincial Prosecutor Eufracio S.
Marquez of Bulacan filed with the Regional Trial Court, Bulacan,
Malolos an Information charging petitioner Vicente del Rosario y
Nicolas with violation of P. D. No. 1866, as follows:
"That on or about the 15th day of June 1996, in the municipality of
Norzagaray, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did
then and there wilfully, unlawfully and feloniously have in his
possession under his custody and control, the following, to wit:
"a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license)
"b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license)
"c) Twenty Seven (27) rds live ammos. For cal. .45
"d) Five (5) pcs. Magazines for cal. .45
"e) Eight (8) rds live ammunitions for cal. 22
"f) Five (5) pcs. Magazines short for cal. 5.56 (M16)

PALISOC & SARMIENTO

On June 25, 1996, the trial court arraigned the petitioner. He

pleaded not guilty.[3] Trial ensued.
The facts, as found by the Court of Appeals, are as follows:
"Sometime in May 1996, the police received a report that accusedappellant Vicente del Rosario was in possession of certain firearms
without the necessary licenses. Acting upon the report, P/Sr. Insp.
Jerito Adique of the PNP Criminal Investigation Group at Camp
Olivas, Pampanga inquired from the PNP Firearms and Explosive
Division whether or not the report was true. On May 10, 1996, P/Sr.
Insp. Edwin C. Roque of the PNP Firearms and Explosives Division
issued a certification (Exhibit L) stating that per records in his
office, the appellant is not a licensed/registered firearm holder of
any kind and caliber. Armed with the said certification, P/Sr. Insp.
Adique applied for a search warrant to enable his team to search
the
house
of
appellant.
"On June 13, 1996, a search warrant (Exhibit A) was issued by
Judge Gil Fernandez, Sr. of the Regional Trial Court of Quezon City,
Branch 217, authorizing the search of the residence of appellant at
Barangay Tigbe, Norzagaray, Bulacan.[4] On June 15, 1996, at
about 7:00 o'clock in the morning, a team led by P/Sr. Insp. Adique
went to Norzagaray to serve the warrant. Before proceeding to the
residence of the appellant, the police officers requested Barangay
Chairman Rogelio de Silva and Barangay Councilman Aurelio
Panteleon to accompany them in the implementation of the
warrant. Upon arrival at the house of appellant, the police officers
introduced themselves to the wife of appellant. When the appellant
came out, P/Sr. Insp. Adique informed him that they had a search
warrant and that they were authorized to search his house. After
appellant gave his permission, the police officers conducted a
search of the house. The search yielded the following items: (a) a
caliber .45 pistol with Serial No. 703792 with five magazines of

329 | P a g e

caliber .45 (Exhibits B and H) found at the master's bedroom; (b)

five magazines of 5.56 M-16 rifle and two radios (Exhibits C to C-4)
found in the room of appellant's daughter; and (c) a caliber .22
revolver with Serial No. 48673 (Exhibit F) containing 8 pieces of live
ammunition (Exhibit M) found in the kitchen of the house. When
asked about his license to possess the firearms, the appellant failed
to produce any. This prompted the police officers to seize the
subject firearms.
"SPO2 Marion Montezon, one of the searching officers, prepared
three separate inventories of the seized items (Exhibits H, M and
N). The inventories were signed by P/Sr. Insp. Adique, the appellant
and the barangay officials who witnessed the search. Thereafter
SPO2 Montezon prepared a certification of orderly search (Exhibit I)
which was signed by the appellant and the barangay officials
attesting
to
the
orderly
conduct
of
the
search.
"For his defense, appellant contends that he had a license for the
caliber .45 pistol recovered in his bedroom and that the other items
seized during the search including the caliber .22 revolver, were
merely planted by the police officers. Appellant likewise assails the
manner in which the search was carried out, claiming that the
police officers just barged into his house without asking permission.
Furthermore, he claimed that the barangay officials arrived only
after
the
police
already
had
finished
the
search.
"After trial and on July 2, 1998, the trial court rendered a judgment
of conviction, the dispositive portion of which reads:
"WHEREFORE, premises considered, the Court finds the accused
VICENTE DEL ROSARIO y NICOLAS guilty beyond reasonable doubt
of violation of P. D. No. 1866 as charged under the Information
dated
June
17,
1996.
"Conformably with the provisions of said law, as amended by
Republic Act No. 8294, and pursuant to the provisions of the
Indeterminate Sentence Law, the Court hereby sentences the
accused to suffer imprisonment of six (6) months of arresto mayor,
as minimum, to six (6) years of prision correctional, as maximum,
and to pay a fine of Fifteen Thousand Pesos (P15,000.00)."[5]

PALISOC & SARMIENTO

On July 20, 1998, petitioner appealed to the Court of Appeals,

assailing the decision for being contrary to facts and the law.[6]
On July 9, 1999, the Court of Appeals promulgated its decision
affirming with modification the decision of the trial court as set out
in the opening paragraph of this decision.[7]
On August 10, 1999, petitioner filed with the Court of Appeals a
motion for reconsideration and/or new trial.[8] He contended that
the certification issued by the Chief, Firearms and Explosives
Division, Philippine National Police stating that the person named
therein had not been issued a firearm license referred to a certain
Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan,
not to him. He comes from barangay Tigbe, Norzagaray, Bulacan,
and
that
he
has
a
valid
firearm
license.
On February 22, 2000, the Court of Appeals denied the motion for
reconsideration for lack of merit.[9]
Hence, this appeal.[10]
Petitioner submits that the search conducted at his residence was
illegal as the search warrant was issued in violation of the
Constitution[11] and consequently, the evidence seized was
inadmissible. He also submits that he had a license for the .45
caliber firearm and ammunition seized in his bedroom. The other
firearm, a .22 caliber revolver seized in a drawer at the kitchen of
his house, a magazine for 5.56 mm. cal. Armalite rifle, and two 2way radios found in his daughter's bedroom, were either planted by
the police or illegally seized, as they were not mentioned in the
search
warrant.
We find the petition impressed with merit.
We define the issues as follows:
First: whether petitioner had a license for the .45 caliber Colt pistol
and ammunition seized in his bedroom; and
Second: whether the .22 caliber revolver seized in a drawer at the
kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle

330 | P a g e

and two 2-way radios found in his daughter's bedroom, were

planted
by
the
police
or
were
illegally
seized.
We shall resolve the issues in seriatim.
First: The .45 cal. Colt pistol in question was duly licensed.
Normally, we do not review the factual findings of the Court of
Appeals and the trial courts.[12] However, this case comes within
the exceptions.[13] The "findings of fact by the Court of Appeals
will not be disturbed by the Court unless these findings are not
supported by evidence."[14] In this case, the findings of the lower
courts even directly contradict the evidence. Hence, we review the
evidence. The trial court held that the copy of the license presented
was blurred, and that in any event, the court could rely on the
certification dated May 10, 1996, of P/Sr. Inspector Edwin C. Roque,
Chief, Records Branch, Firearms and Explosives Division, Philippine
National Police stating that Vicente "Vic" del Rosario of Barangay
Bigte, Norzagaray, Bulacan is not a licensed/registered firearm
holder of any kind and caliber.[15] As against this, petitioner
submitted that he was not the person referred to in the said
certification because he is Vicente del Rosario y Nicolas from
Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial
notice of the existence of both barangay Tigbe and barangay Bigte,
in Norzagaray, Bulacan.[16] In fact, the trial court erred grievously
in not taking judicial notice of the barangays within its territorial
jurisdiction, believing the prosecution's submission that there was
only barangay Tigbe, and that barangay Bigte in the certification
was a typographical error.[17] Petitioner presented to the head of
the raiding team, Police Senior Inspector Jerito A. Adique, Chief,
Operations Branch, PNP Criminal Investigation Command, a valid
firearm license. The court is duty bound to examine the evidence
assiduously to determine the guilt or innocence of the accused. It is
true that the court may rely on the certification of the Chief,
Firearms and Explosives Division, PNP on the absence of a firearm
license.[18] However, such certification referred to another
individual and thus, cannot prevail over a valid firearm license duly
issued to petitioner. In this case, petitioner presented the printed
computerized copy of License No. RCL 1614021915 issued to him
on July 13, 1993, expiring in January 1995, by the Chief, Firearms
and Explosives Division, PNP under the signature of Reynaldo V.

PALISOC & SARMIENTO

Velasco, Sr. Supt. (GSC) PNP, Chief, FEO.[19] On the dorsal side of
the printed computerized license, there is stamped the words
"Validity of computerized license is extended until renewed license
is printed" dated January 17, 1995, signed by Police Chief Inspector
Franklin S. Alfabeto, Chief, Licence Branch, FEO.[20] Coupled with
this indefinite extension, petitioner paid the license fees for the
extension of the license for the next two-year period.[21]
Consequently, we find that petitioner was the holder of a valid
firearm license for the .45 caliber Colt pistol seized in the bedroom
of his house on June 15, 1996.[22] As required, petitioner presented
the license to the head of the raiding team, Police Senior Inspector
Jerito A. Adique of the Criminal Investigation Division Group, PNP.
[23] As a senior police officer, Senior Inspector Adique could easily
determine the genuineness and authenticity of the computerized
printed license presented. He must know the computerized license
printed form. The stamp is clearly visible. He could decipher the
words and the signature of the authorized signing official of the
Firearms and Explosives Division, PNP. He belonged to the same
national police organization.
Nevertheless, Senior Insp. Adique rejected the license presented
because, according to him, it was expired. However, assuming that
the license presented was expired during the period January 1995
to January 1997, still, possession of the firearm in question, a .45
caliber Colt pistol with serial No. 70G23792, during that period was
not illegal. The firearm was kept at home, not carried outside
residence. On June 15, 1996, at the time of the seizure of the
firearm in question, possession of firearm with an expired license
was not considered unlawful, provided that the license had not
been cancelled or revoked. Republic Act No. 8294, providing that
possession of a firearm with an expired license was unlawful took
effect only on July 7, 1997.[24] It could not be given retroactive
effect.[25]
According to firearm licensing regulations, the renewal of a firearm
license was automatically applied for upon payment of the license
fees for the renewal period. The expired license was not cancelled
or revoked. It served as temporary authority to possess the firearm
until the renewed license was issued. Meantime, the applicant may
keep the gun at home pending renewal of the firearm license and

331 | P a g e

issuance of a printed computerized license. He was not obliged to

surrender the weapon. Printed at the dorsal side of the
computerized license is a notice reading:

3. Unauthorized loan of firearm/s to another person is punishable

by permanent disqualification and forfeiture of the firearm in favor
of the government.

"IMPORTANT
1. This firearm license is valid for two (2) years. Exhibit this license
whenever demanded by proper authority.
2. Surrender your firearm/s to the nearest PNP Unit upon revocation
or termination of this license. Under any of the following instances,
your license shall be revoked for which reason your firearm/s is/are
subject to confiscation and its/their forfeiture in favor of the
government.
a. Failure to notify the Chief of PNP in writing of your change of
address, and/or qualification.
b. Failure to renew this license by paying annual license, fees,
within six (6) months from your birth month. Renewal of your
license can be made within your birth month or month preceding
your birth month. Late renewal shall be penalized with 50%
surcharge for the first month (from the first day to the last day of
this month) followed by an additional 25% surcharge for all of the
succeeding five (5) months compounded monthly.
c. Loss of firearm/s through negligence.
d. Carrying of firearm/s outside of residence without appropriate
permit and/or carrying firearm/s in prohibited places.
e. Conviction by competent court for a crime involving moral
turpitude or for any offense where the penalty carries an
imprisonment of more than six (6) months or fine of at least
P1,000.00.
f. Dismissal for cause from the service.
g. Failure to sign license, or sign ID picture or affix right
thumbmark.

PALISOC & SARMIENTO

4. If termination is due to death, your next of kin should surrender

your firearm/s to the nearest PNP Unit. For those within Metro
Manila, surrender should be made with FEO, Camp Crame.
5. When firearms become permanently unserviceable, they should
be deposited with the nearest PNP Unit and ownership should be
relinquished in writing so that firearms may be disposed of in
accordance
with
law.
6. Application for the purchase of ammunition should be made in
case of a resident of Metro Manila direct to the Chief, FEO and for
residents of a Province to secure recommendation letter to the
nearest PNP Provincial Command who will thereafter endorse same
to CHIEF, FEO for issuance of the permit. License must be
presented before an authority to purchase ammo could be
obtained."[26]
Indeed, as heretofore stated, petitioner duly paid the license fees
for the automatic renewal of the firearm license for the next two
years upon expiration of the license in January 1995, as evidenced
by official receipt No. 7615186, dated January 17, 1995.[27] The
license would be renewed, as it was, because petitioner still
possessed the required qualifications. Meantime, the validity of the
license was extended until the renewed computerized license was
printed. In fact, a renewed license was issued on January 17, 1997,
for the succeeding two-year period.[28]
Aside from the clearly valid and subsisting license issued to
petitioner, on January 25, 1995, the Chief, Philippine National Police
issued to him a permit to carry firearm outside residence valid until
January 25, 1996, for the firearm in question.[29] The Chief,
Philippine National Police would not issue a permit to carry firearm
outside residence unless petitioner had a valid and subsisting
firearm license. Although the permit to carry firearm outside
residence was valid for only one year, and expired on January 25,
1996, such permit is proof that the regular firearm license was

332 | P a g e

renewed and subsisting within the two-year term up to January

1997. "A Permit to Carry Firearm Outside Residence presupposes
that the party to whom it is issued is duly licensed to possess the
firearm in question."[30] Unquestionably, on January 17, 1997, the
Chief, Firearms and Explosives Division, PNP renewed petitioner's
license for the .45 cal. Colt pistol in question.[31]
Clearly then, petitioner had a valid firearm license during the
interregnum between January 17, 1995, to the issuance of his
renewed license on January 17, 1997.
Finally, there is no rhyme or reason why the Court of Appeals and
the trial court did not accept with alacrity the certification dated
June 25, 1996, of P/Sr. Inspector Edwin C. Roque,[32] Chief, Records
Branch, Firearms and Explosives Division, PNP that Vicente N. del
Rosario of Barangay Tigbe, Norzagaray, Bulacan is a
licensed/registered holder of Pistol, Colt caliber .45 with serial
number 70G23792, covered by computerized license issued dated
June 15, 1995, with an expiry date January 1997.[33] Reinforcing
the aforementioned certification, petitioner submitted another
certification dated August 27, 1999, stating that Vicente N. del
Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued
firearm license No. RL-C1614021915, for caliber .45 Pistol with
Serial Number 70G23792, for the years covering the period from
July 13, 1993 to January 1995, and the extension appearing at the
back thereof for the years 1995 to 1997.[34] Had the lower courts
given full probative value to these official issuances, petitioner
would have been correctly acquitted, thus sparing this Court of
valuable
time
and
effort.
"In crimes involving illegal possession of firearm, the prosecution
has the burden of proving the elements thereof, viz.: (a) the
existence of the subject firearm and (b) the fact that the accused
who owned or possessed it does not have the license or permit to
possess the same.[35] The essence of the crime of illegal
possession is the possession, whether actual or constructive, of the
subject firearm, without which there can be no conviction for illegal
possession. After possession is established by the prosecution, it
would only be a matter of course to determine whether the accused
has a license to possess the firearm."[36] "Possession of any
firearm becomes unlawful only if the necessary permit or license

PALISOC & SARMIENTO

therefor is not first obtained. The absence of license and legal

authority constitutes an essential ingredient of the offense of illegal
possession of firearm and every ingredient or essential element of
an offense must be shown by the prosecution by proof beyond
reasonable doubt. Stated otherwise, the negative fact of lack or
absence of license constitutes an essential ingredient of the offense
which the prosecution has the duty not only to allege but also to
prove beyond reasonable doubt."[37] "To convict an accused for
illegal possession of firearms and explosives under P. D. 1866, as
amended, two (2) essential elements must be indubitably
established, viz.: (a) the existence of the subject firearm or
explosive which may be proved by the presentation of the subject
firearm or explosive or by the testimony of witnesses who saw
accused in possession of the same, and (b) the negative fact that
the accused had no license or permit to own or possess the firearm
or explosive which fact may be established by the testimony or
certification of a representative of the PNP Firearms and Explosives
Unit that the accused has no license or permit to possess the
subject firearm or explosive." x x x We stress that the essence of
the crime penalized under P. D. 1866 is primarily the accused's lack
of license or permit to carry or possess the firearm, ammunition or
explosive as possession by itself is not prohibited by law."[38]
Illegal possession of firearm is a crime punished by special law, a
malum prohibitum, and no malice or intent to commit a crime need
be proved.[39] To support a conviction, however, there must be
possession coupled with intent to possess (animus possidendi) the
firearm.[40]
In upholding the prosecution and giving credence to the testimony
of police officer Jerito A. Adigue, the trial court relied on the
presumption of regularity in the performance of official duties by
the police officers.[41] This is a flagrant error because his
testimony is directly contradictory to the official records of the
Firearms and Explosives Division, PNP, which must prevail. Morever,
the presumption of regularity can not prevail over the
Constitutional presumption of innocence.[42] Right from the start,
P/Sr. Insp. Jerito A. Adigue was aware that petitioner possessed a
valid license for the caliber .45 Colt pistol in question. Despite this
fact, P/Sr. Insp. Adigue proceeded to detain petitioner and charged
him with illegal possession of firearms. We quote pertinent portions
of
the
testimony
of
petitioner:

333 | P a g e

"Q: What else did Adigue tell you after showing to him the license
of your cal. .45 pistol and the alleged cal. .22 found in a drawer in
your
kitchen?
A: He told me that since my firearm is licensed, he will return my
firearm, give him ten thousand pesos (P10,000.00) and for me to
tell who among the people in our barangay have unlicensed
firearm, sir.
Q: How did he say about the ten thousand pesos?
A: He said "palit kalabaw na lang tayo" sir.
Q: And what did you answer him?
A: I told him my firearm is licensed and I do not have money, if I
have, I will not give him, sir, because he was just trying to squeeze
something
from
me.
Q: How about the unlicensed firearms in your barangay which he
asked from you?
A: I said I do not know any unlicensed firearm in our barangay, sir.
Q: About the .22 cal. pistol, what was your answer to him?
A: I told him that it was not mine, they planted it, sir.
Q: What did he say next?
A: He said that it is your word against mine, the Court will believe
me because I am a police officer, sir.
Q: What was your comment to what he said?
A: I said my firearm is licensed and we have Courts of law who do
not conform with officials like you and then he laughed and
laughed,
sir."[43]
The trial court was obviously misguided when it held that "it is a

PALISOC & SARMIENTO

matter of judicial notice that a caliber .45 firearm can not be

licensed to a private individual."[44] This ruling has no basis either
in
law
or
in
jurisprudence.[45]
Second issue. The seizure of items not mentioned in the search
warrant
was
illegal.
With respect to the .22 caliber revolver with Serial No. 48673, that
the police raiding team found in a drawer at the kitchen of
petitioner's house, suffice it to say that the firearm was not
mentioned in the search warrant applied for and issued for the
search of petitioner's house. "Section 2, Article III of the
Constitution lays down the general rule that a search and seizure
must be carried out through or on the strength of a judicial warrant,
absent which such search and seizure becomes 'unreasonable'
within the meaning of said constitutional provision."[46]
"Supporting jurisprudence thus outlined the following requisites for
a search warrant's validity, the absence of even one will cause its
downright nullification: (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."[47] Seizure is limited to those items particularly described
in a valid search warrant. Searching officers are without discretion
regarding what articles they shall seize.[48] Evidence seized on the
occasion of such an unreasonable search and seizure is tainted and
excluded for being the proverbial "fruit of a poisonous tree." In the
language of the fundamental law, it shall be inadmissible in
evidence
for
any
purpose
in
any
proceeding.[49]
In this case, the firearm was not found inadvertently and in plain
view. It was found as a result of a meticulous search in the kitchen
of petitioner's house. This firearm, to emphasize, was not
mentioned in the search warrant. Hence, the seizure was illegal.
[50] The seizure without the requisite search warrant was in plain
violation of the law and the Constitution.[51] True that as an
exception, the police may seize without warrant illegally possessed
firearm or any contraband for that matter, inadvertently found in

334 | P a g e

plain view. However, "[t]he seizure of evidence in 'plain view'

applies only where the police officer is not searching for evidence
against the accused, but inadvertently comes across an
incriminating object."[52] Specifically, seizure of evidence in "plain
view" is justified when there is:
(a) a prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their official
duties;
(b) the evidence was inadvertently discovered by the police who
had the right to be where they are;
(c)

the

evidence

must

be

immediately

apparent,

and

(d) "plain view" justified mere seizure of evidence without further

search.[53]
Hence, the petitioner rightly rejected the firearm as planted and not
belonging to him. The prosecution was not able to prove that the
firearm was in the effective possession or control of the petitioner
without a license. In illegal possession of firearms, the possessor
must know of the existence of the subject firearm in his possession
or control. "In People v. de Gracia,[54] we clarified the meaning of
possession for the purpose of convicting a person under P. D. No.
1866, thus: x x x 'In the present case, a distinction should be made
between criminal intent and intent to possess. While mere
possession without criminal intent is sufficient to convict a person
for illegal possession of a firearm, it must still be shown that there
was animus possidendi or an intent to possess on the part of the
accused.' x x x x Hence, the kind of possession punishable under P.
D. No. 1866 is one where the accused possessed a firearm either
physically or constructively with animus possidendi or intention to
possess the same."[55] That is the meaning of animus possidendi.
In the absence of animus possidendi, the possessor of a firearm
incurs no criminal liability.
The same is true with respect to the 5.56 cal. magazine found in
the bedroom of petitioner's daughter. The seizure was invalid and
the seized items were inadmissible in evidence. As explained in
People v. Doria,[56] the "plain view" doctrine applies when the

PALISOC & SARMIENTO

following requisites concur: (1) the law enforcement officer is in a

position where he has a clear view of a particular area or has prior
justification for an intrusion; (2) said officer inadvertently comes
across (or sees in plain view) a piece of incriminating evidence; and
(3) it is immediately apparent to such officer that the item he sees
may be evidence of a crime or a contraband or is otherwise subject
to
seizure."
With particular reference to the two 2-way radios that the raiding
policemen also seized in the bedroom of petitioner's daughter,
there was absolutely no reason for the seizure. The radios were not
contraband per se. The National Telecommunications Commission
may license two-way radios at its discretion.[57] The burden is on
the prosecution to show that the two-way radios were not licensed.
The National Telecommunication Commission is the sole agency
authorized to seize unlicensed two-way radios. More importantly,
admittedly, the two-way radios were not mentioned in the search
warrant. We condemn the seizure as illegal and a plain violation of
a citizen's right. Worse, the petitioner was not charged with illegal
possession of the two-way radios.
Consequently, the confiscation of the two 2-way radios was clearly
illegal. The possession of such radios is not even included in the
charge of illegal possession of firearms (violation of P. D. No. 1866,
as amended) alleged in the Information.
WHEREFORE, the Court hereby REVERSES the decision of the Court
of Appeals in CA-G. R. CR No. 22255, promulgated on July 09,
1999.
The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the
charge of violation of P. D. No. 1866, as amended by R. A. No. 8294
(illegal possession of firearms and ammunition), in Criminal Case
No. 800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos.
Costs de oficio.
The Chief, Firearms and Explosives Division, PNP shall return to
petitioner his caliber .45 Colt pistol, with Serial Number No.
70G23792, the five (5) extra magazines and twenty seven (27)
rounds of live ammunition, and the two 2-way radios confiscated

335 | P a g e

from him. The Chief, Philippine National Police, or his duly

authorized representative shall show to this Court proof of
compliance herewith within fifteen (15) days from notice. The .22
caliber revolver with Serial No. 48673, and eight (8) live
ammunition and the magazine for 5.56 mm. caliber Armalite rifle
are
confiscated
in
favor
of
the
government.
SO ORDERED.

PALISOC & SARMIENTO

336 | P a g e

G.R. No. 196390

September 28, 2011
PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), Petitioner,
vs.
RICHARD BRODETT AND JORGE JOSEPH, Respondents.
DECISION
BERSAMIN, J.:
Objects of lawful commerce confiscated in the course of an
enforcement of the Comprehensive Dangerous Drugs Act of 2002
(Republic Act No. 9165)that are the property of a third person are
subject to be returned to the lawful ownerwho is not liable for the
unlawful act. But the trial court may not release such objects
pending trial and before judgment.
Antecedents
On April 13, 2009, the State, through the Office of the City
Prosecutor of Muntinlupa City,charged RichardBrodett (Brodett) and
Jorge Joseph (Joseph) with a violation of Section 5, in relation to
Section 26(b), of Republic Act No. 91651 in the Regional Trial Court
(RTC) in MuntinlupaCity,docketed as Criminal Case No. 09-208,the
accusatory portion of the information for which reads as follows:
That on or about the 19th day of September 2008, in the City of
Muntinlupa, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding each other, they not
being authorized by law, did then and there wilfully, unlawfully, and
feloniously sell, trade, deliver and give away to another, sixty (60)
pieces of blue-colored tablets with Motorala (M) logos, contained in
six (6) self-sealing transparent plastic sachets with recorded total
net weight of 9.8388 grams, which when subjected to laboratory
examination
yielded
positive
results
for
presence
of
METHAMPHETAMINE, a dangerous drug.2
Also on April 16, 2009, the State, also through the Office of the City
Prosecutor of Muntinlupa City, filed another information charging
only Brodett with a violation of Section 11 of R.A. No. 9165,
docketed as Criminal Case No. 09-209, with the information
alleging:
That on or about the 19th day of September 2008, in the City of
Muntinlupa, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law, did
then and there, wilfully, unlawfully, and feloniously have in his
possession, custody and control the following:
a. Four (4) yellow tablets with Playboy logos and ten (10)
transparent capsules containing white powdery substance
contained in one self-sealing transparent plastic sachet having a
net weight of 4.9007 grams, which when subjected to laboratory
examination yielded positive results for presence of METHYLENE
DIOXYMETHAMPHETAMINE (MDMA), commonly known as "Ecstasy",
a dangerous drug;

PALISOC & SARMIENTO

b. Five (5) self-sealing transparent plastic sachets containing white

powdery substance with total recorded net weight of 1.2235 grams,
which when subjected to laboratory examination yielded positive
results for presence of COCCAINE, a dangerous drug;
c. Five (5) self-sealing transparent plastic sachets containing white
powdery substance, placed in a light-yellow folded paper, with total
recorded net weight of 2.7355 grams, which when subjected to
laboratory examination yielded positive results for presence of
COCCAINE, a dangerous drug;
d. Three (3) self-sealing transparent plastic sachets containing
dried leaves with total recorded net weight of 54.5331 grams,
which when subjected to laboratory examination yielded positive
results for presence of TETRAHYDROCANNABINOL, a dangerous
drug.3
In the course of the proceedings in the RTC, on July 30, 2009,
Brodett filed a MotionToReturn Non-Drug Evidence. He averred that
during his arrest, Philippine Drug Enforcement Agency (PDEA) had
seized several personal non-drug effects from him,including a 2004
Honda Accord car with license plate no. XPF-551;and that
PDEArefused to return his personal effects despite repeated
demands for their return. He prayed that his personal effects be
tendered to the trial court to be returned to himupon verification. 4
On August 27, 2009, the Office of the City Prosecutor submitted its
Comment and Objection,5 proposingthereby that the delivery to the
RTC of the listedpersonal effects for safekeeping, to be held there
throughout the duration of the trial, would be to enable the
Prosecution and the Defense to exhaust their possible evidentiary
value. The Office of the City Prosecutor objected to the return of the
car because it appeared to be the instrument in the commission of
the violation of Section 5 of R.A. No. 9165 due to its being the
vehicle used in the transaction of the sale of dangerous drugs.
On November 4, 2009, the RTC directedthe release of the car, viz:
WHEREFORE, the Director of PDEA or any of its authorized officer or
custodian
is
hereby
directed
to:
(1)
photograph
the
abovementioned Honda Accord, before returning the same to its
rightful owner Myra S. Brodett and the return should be fully
documented, and (2) bring the personal properties as listed in this
Order of both accused, Richard S. Brodett and Jorge J. Joseph to this
court for safekeeping, to be held as needed.
SO ORDERED.6
PDEA moved to reconsider the order of the RTC, but its motion was
denied on February 17, 2010 for lack of merit, to wit:
WHEREFORE,premises considered, the Motion for Reconsideration
is hereby DENIED for lack of merit. The Order of the Court dated
November 4, 2009 is upheld.
SO ORDERED.7

337 | P a g e

Thence, PDEA assailed the order of the RTC in the Court of Appeals
(CA) by petition for certiorari, claiming that the orders of the RTC
were issued in grave abuse of discretion amounting to lack or
excess of jurisdiction.
On March 31, 2011, the CA promulgated its Decision, 8 dismissing
the petition for certiorari thusly:
xxxx
Here it is beyond dispute that the Honda Accord subject of this
petition is owned by and registered in the name of Myra S. Brodett,
not accused Richard Brodett. Also, it does not appear from the
records of the case that said Myra S. Brodett has been charged of
any crime, more particularly, in the subject cases of possession and
sale of dangerous drugs. Applying Section 20 of the law to the
dispute at bar, We therefore see no cogent reason why the subject
Honda Accord may not be exempted from confiscation and
forfeiture.
xxxx
We thus cannot sustain petitioners submission that the subject car,
being an instrument of the offense, may not be released to Ms.
Brodett and should remain in custodia legis. The letters of the law
are plain and unambiguous. Being so, there is no room for a
contrary construction, especially so that the only purpose of judicial
construction is to remove doubt and uncertainty, matters that are
not obtaining here. More so that the required literal interpretation is
consistent with the Constitutional guarantee that a person may not
be deprived of life, liberty or property without due process of law.
WHEREFORE, the instant petition is DENIED and consequently
DISMISSED for lack of merit.
SO ORDERED.9
Hence, PDEA appeals.
Issues
Essentially,PDEA asserts that the decision of the CAwas not in
accord with applicable laws and the primordial intent of the framers
of R. A. No. 9165.10 It contends that the CA gravely erred in its
ruling; that the Honda Accord car, registered under the name of
Myra S. Brodett (Ms.Brodett), had been seized from accused
Brodettduring a legitimate anti-illegal operation and should not be
released from the custody of the law;that the Motion to Return NonDrug Evidencedid not intimate or allege that the car had belonged
to a third person; and that even if the car had belonged to Ms.
Brodett, a third person, her ownership did not ipso facto authorize
its release, because she was under the obligation to prove to the
RTC that she had no knowledge of the commission of the crime.
In hisComment,11 Brodettcounters that the petitioner failed to
present any question of law that warranted a review by the
Court;that Section 20 of R. A. No. 9165 clearly and unequivocally
states that confiscation and forfeiture of the proceeds or

PALISOC & SARMIENTO

instruments of the supposed unlawful act in favor of the

Government may be done by PDEA, unless such proceeds or
instruments are the property of a third person not liable for the
unlawful act; that PDEA is gravely mistaken in its reading that the
third person must still prove in the trial court that he has no
knowledge of the commission of the crime; and that PDEA failed to
exhaust all remedies before filing the petition for review.
The decisive issue is whether or not the CA erred in affirming the
orderfor the release of the car to Ms.Brodett.
Ruling
The petition is meritorious.
I
Applicable
laws
and
jurisprudence
on
releasing
property confiscated in criminal proceedings
It is not open to question thatin a criminal proceeding, the court
having jurisdiction over the offense has the power to order upon
conviction of an accusedthe seizure of (a) the instruments to
commit the crime, including documents, papers, and other effects
that are the necessary means to commit the crime; and (b)
contraband, the ownership or possession of which is not permitted
for being illegal. As justification for the first, the accused must not
profit from his crime, or must not acquire property or the right to
possession of property through his unlawful act. 12 As justification for
thesecond, to return to the convict from whom thecontraband was
taken, in one way or another,is not prudent or proper, because
doing so will give rise to a violation of the law for possessing the
contraband again.13 Indeed, the court having jurisdiction over the
offense has theright to dispose of property used in the commission
of the crime, such disposition being an accessory penalty to be
imposed on the accused, unless the property belongs to a third
person not liable for the offense that it was used as the instrument
to commit.14
In case of forfeiture of property for crime, title and ownership of the
convict are absolutely divested and shall pass to the
Government.15 But it is required that the property to be forfeited
must be before the court in such manner that it can be said to be
within its jurisdiction.16
According to the Rules of Court, personal property may be seized in
connection with a criminal offense either by authority of a search
warrant or as the product of a search incidental to a lawful arrest. If
the search is by virtue of a search warrant, the personal property
that may be seized may be that which is the subject of the offense;
or that which has been stolen or embezzled and other proceeds, or
fruits of the offense; orthat which has been used or intended to be
used as the means of committing an offense. 17 If the search is an
incident of a lawful arrest, seizure may be made of dangerous
weapons or anything that may have been used or may constitute

338 | P a g e

proof in the commission of an offense. 18 Should there be no ensuing

criminal prosecution in which the personal property seized is used
as evidence, its return to the person from whom it was taken, or to
the person who is entitled to its possession is but a matter of
course,19 except if it is contraband or illegal per se. A proper court
may order the return of property held solely as evidence should the
Government be unreasonably delayed in bringing a criminal
prosecution.20 The order for the disposition of such property can be
made only when the case is finally terminated. 21
Generally, the trial court is vested with considerable legal
discretion in the matter of disposing of property claimed as
evidence,22 and this discretion extends even to the manner of
proceeding in the event the accused claims the property was
wrongfully taken from him. 23 In particular, the trial court has the
power to return property held as evidence to its rightful owners,
whether the property was legally or illegally seized by the
Government.24 Property used as evidence must be returned once
the criminal proceedings to which it relates have terminated, unless
it is then subject to forfeiture or other proceedings. 25
II
Order of release was premature and made in contravention of
Section 20, R.A. No. 9165
It is undisputed that the ownership of the confiscated car belonged
to Ms. Brodett, who was not charged either in connection with the
illegal possession and sale of illegal drugs involving Brodett and
Joseph that were the subject of the criminal proceedings in the RTC,
or even in any other criminal proceedings.
In its decision under review, the CA held as follows:
A careful reading of the above provision shows that confiscation
and forfeiture in drug-related cases pertains to "all the proceeds
and properties derived from the unlawful act, including but not
limited to, money and other assets obtained thereby, and the
instruments or tools with which the particular unlawful act was
committed unless they are the property of a third person not liable
for the unlawful act." Simply put, the law exempts from the effects
of confiscation and forfeiture any property that is owned by a third
person who is not liable for the unlawful act.
Here, it is beyond dispute that the Honda Accord subject of this
petition is owned by and registered in the name of Myra S. Brodett,
not accused Richard Brodett. Also, it does not appear from the
records of the case that said Myra S. Brodett has been charged of
any crime, more particularly, in the subject cases of possession and
sale of dangerous drugs. Applying Section 20 of the law to the
dispute at bar, We therefore see no cogent reason why the subject
Honda Accord may not be exempted from confiscation and
forfeiture.

PALISOC & SARMIENTO

Basic is the rule in statutory construction that when the law is clear
and unambiguous, the court has no alternative but to apply the
same according to its clear language. The Supreme Court had
steadfastly adhered to the doctrine that the first and fundamental
duty of courts is to apply the law according to its express terms,
interpretation being called only when such literal application is
impossible. No process of interpretation or construction need be
resorted to where a provision of law peremptorily calls for
application.
We thus cannot sustain petitioners submission that the subject car,
being an instrument of the offense, may not be released to Ms.
Brodett and should remain in custodia legis. The letters of the law
are plain and unambiguous. Being so, there is no room for a
contrary construction, especially so that the only purpose of judicial
construction is to remove doubt and uncertainty, matters that are
not obtaining here. More so that the required literal interpretation is
not consistent with the Constitutional guarantee that a person may
not be deprived of life, liberty or property without due process of
law.26 (emphases are in the original text)
The legal provision applicable to the confiscation and forfeiture of
the proceeds or instruments of the unlawful act, including the
properties or proceeds derived from illegal trafficking of dangerous
drugs and precursors and essential chemicals,is Section 20 of R.A.
No. 9165, which pertinently providesas follows:
Section 20.Confiscation and Forfeiture of the Proceeds or
Instruments of the Unlawful Act, Including the Properties or
Proceeds Derived from the Illegal Trafficking of Dangerous Drugs
and/or Precursors and Essential Chemicals. Every penalty
imposed for the unlawful importation, sale, trading, administration,
dispensation, delivery, distribution, transportation or manufacture
of any dangerous drug and/or controlled precursor and essential
chemical, the cultivation or culture of plants which are sources of
dangerous drugs, and the possession of any equipment,
instrument, apparatus and other paraphernalia for dangerous drugs
including other laboratory equipment, shall carry with it the
confiscation and forfeiture, in favor of the government, of all the
proceeds derived from unlawful act, including, but not limited to,
money and other assets obtained thereby, and the instruments or
tools with which the particular unlawful act was committed, unless
they are the property of a third person not liable for the unlawful
act, but those which are not of lawful commerce shall be ordered
destroyed without delay pursuant to the provisions of Section 21 of
this Act.
After conviction in the Regional Trial Court in the appropriate
criminal case filed, the Court shall immediately schedule a hearing
for the confiscation and forfeiture of all the proceeds of the offense
and all the assets and properties of the accused either owned or

339 | P a g e

held by him or in the name of some other persons if the same shall
be found to be manifestly out of proportion to his/her lawful
income: Provided, however, That if the forfeited property is a
vehicle, the same shall be auctioned off not later than five (5) days
upon order of confiscation or forfeiture.
During the pendency of the case in the Regional Trial Court, no
property, or income derived therefrom, which may be confiscated
and forfeited, shall be disposed, alienated or transferred and the
same shall be in custodialegis and no bond shall be admitted for
the release of the same.
The proceeds of any sale or disposition of any property confiscated
or forfeited under this Section shall be used to pay all proper
expenses incurred in the proceedings for the confiscation,
forfeiture, custody and maintenance of the property pending
disposition, as well as expenses for publication and court costs. The
proceeds in excess of the above expenses shall accrue to the Board
to be used in its campaign against illegal drugs. 27
There is no question, for even PDEA has itself pointed out, that the
text of Section 20 of R. A. No. 9165relevant to the confiscation and
forfeiture of the proceeds or instruments of the unlawful act is
similar to that ofArticle 45 of the Revised Penal Code, which states:
Article 45.Confiscation and Forfeiture of the Proceeds or
Instruments of theCrime. Every penalty imposed for the
commission of a felony shall carry with it the forfeiture of the
proceeds of the crime and the instruments or tools with which it
was committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be the property of
a third person not liable for the offense, but those articles which are
not subject of lawful commerce shall be destroyed.
The Court has interpreted and applied Article 45of the Revised
Penal Codein People v. Jose,28 concerning the confiscation and
forfeiture of the car used by the four accused when they committed
theforcible abduction with rape, although the car did not belong to
any of them, holding:
xxx Article 45 of the Revised Penal Code bars the confiscation and
forfeiture of an instrument or tool used in the commission of the
crime if such "be the property of a third person not liable for the
offense," it is the sense of this Court that the order of the court
below for the confiscation of the car in question should be set aside
and that the said car should be ordered delivered to the intervenor
for foreclosure as decreed in the judgment of the Court of First
Instance of Manila in replevin case. xxx29
Such interpretation is extended by analogy to Section 20, supra. To
bar the forfeiture of the tools and instruments belonging to a third
person,therefore, there must be an indictment charging such third
person either as a principal, accessory, or accomplice. Less than

PALISOC & SARMIENTO

that will not suffice to prevent the return of the tools and
instruments to the third person, for a mere suspicion of that
persons participation is not sufficient ground for the court to order
the forfeiture of the goods seized.30
However, the Office of the City Prosecutorproposed throughits
Comment and Objection submitted on August 27, 2009 in the
RTC31 that the delivery to the RTC of the listed personal effects for
safekeeping, to be held there throughout the duration of the trial,
would be to enable the Prosecution and the Defenseto exhaust
their possible evidentiary value. The Office of the City Prosecutor
further objected to the return of the car because it appeared to
bethe vehicle used in the transaction of the sale of dangerous
drugs, and, as such, was the instrument in the commission of the
violation of Section 5 of R.A. No. 9165.
On its part, PDEA regards the decision of the CA to be not in accord
with applicable laws and the primordial intent of the framers of R.
A. No. 9165,32 and contends that the car should not be released
from the custody of the law because it had been seized from
accused Brodett during a legitimate anti-illegal operation. It argues
that the Motion to Return Non-Drug Evidencedid not intimate or
allege that the car had belonged to a third person; and that even if
the car had belonged to Ms. Brodett, a third person, her ownership
did not ipso facto authorize its release, because she was under the
obligation to prove to the RTC that she had no knowledge of the
commission of the crime. It insists that the car is a property in
custodialegis and may not be released during the pendency of the
trial.
We agree with PDEA and the Office of the City Prosecutor.
We note that the RTC granted accusedBrodettsMotion To Return
Non-Drug Evidence on November 4, 2009 when the criminal
proceedings were still going on, and the trial was yet to be
completed. Ordering the release of the car at that pointof the
proceedings was premature, considering that the third paragraph of
Section 20, supra, expressly forbids the disposition, alienation, or
transfer of any property, or income derived therefrom, that has
been confiscated from the accused charged under R.A. No. 9165
during the pendency of the proceedings in the Regional Trial
Court.Section 20 further expressly requires that such property or
income derived therefrom should remain in custodialegis in all that
time and that no bond shall be admitted for the release of it.
Indeed, forfeiture, if warrantedpursuant to either Article 45 of the
Revised Penal Code and Section 20 of R.A. No. 9165, would be a
part of the penalty to be prescribed. The determination of
whetheror not the car (or any other article confiscated in relation to
the unlawful act) would be subject of forfeiture could be made only
when the judgment was to be rendered in the proceedings. Section
20 is also clear as to this.

340 | P a g e

The status of the car (or any other article confiscated in relation to
the unlawful act) for the duration of the trial in the RTCas being in
custodialegisisprimarily intended to preserve it as evidence and to
ensure its availability as such. To release it before the judgment is
rendered is to deprive the trial court and the parties access to it as
evidence. Consequently, that photographs were ordered to be
taken of the car was not enough, for mere photographs might not
fill in fully the evidentiary need of the Prosecution. As such, the
RTCs assailed orders were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction for being in
contravention with the express language of Section 20 of R.A. No.
9165.
Nonetheless, the Court need not annul the assailed orders of the
RTC, or reverse the decision of the CA. It appears thaton August 26,
2011 the RTC promulgated its decision on the merits in Criminal
Case No. 09-208 and Criminal Case No. 09-209, acquitting both
Brodettand Joseph and further ordering the return to the accused of
all non-drug evidence except the buy-bust money and the genuine
money,because:
The failure of the prosecution therefore to establish all the links in
the chain of custody is fatal to the case at bar. The Court cannot
merely rely on the presumption of regularity in the performance of
official function in view of the glaring blunder in the handling of the
corpus delicti of these cases. The presumption of regularity should
bow down to the presumption of innocence of the accused. Hence,
the two (2) accused BRODETT and JOSEPH should be as it is hereby
ACQUITTED of the crimes herein charged for Illegal Selling and
Illegal Possession of Dangerous Drugs.
WHEREFORE, premises considered, for failure of the prosecution to
prove the guilt of the accused beyond reasonable doubt, RICHARD
BRODETT y SANTOS and JORGE JOSEPH y JORDANA are ACQUITTED
of the crimes charged in Criminal Case Nos. 09-208 and 09-209.
The subject drug evidence are all ordered transmitted to the
Philippine Drug Enforcement Agency (PDEA) for proper disposition.
All the non-drug evidence except the buy bust money and the
genuine money are ordered returned to the accused.
The genuine money used in the buy bust operation as well as the
genuine money confiscated from both accused are ordered
escheated in favor of the government and accordingly transmitted
to the National Treasury for proper disposition. (emphasis
supplied)33
The directive to return the non-drug evidence hasovertaken the
petition for review as to render further action upon it superfluous.
Yet, the Court seizes the opportunity to perform its duty to
formulate guidelines on the matter of confiscation and forfeiture of
non-drug articles, including those belonging to third persons not
liable for the offense, in order to clarify the extent of the power of

PALISOC & SARMIENTO

the trial court under Section 20 of R.A. No. 9165. 34 This the Court
must now do in view of the question about the confiscation and
forfeiture of non-drug objects being susceptible of repetition in the
future.35 1wphi1
We rule that henceforth the Regional Trial Courts shall comply
strictly with the provisions of Section 20 of R.A. No. 9165, and
should not release articles, whether drugs or non-drugs, for the
duration of the trial and before the rendition of the judgment, even
if owned by a third person who is not liable for the unlawful act.
IN VIEW OF THE FOREGOING, the petition for review isDENIED.
The Office of the Court Administrator is directed to disseminate this
decision to all trial courts for their guidance.
SO ORDERED.

341 | P a g e

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL

TUDTUD y PAYPA and DINDO BOLONG y NARET, accusedappellants.
G.R. No. 144037 | 2003-09-26
DECISION
Tinga,
J.:

headed to Cotabato and would be back later that day with new
stocks of marijuana.[8] Solier described Tudtud as big-bodied and
short, and usually wore a hat.[9] At around 4:00 in the afternoon
that same day, a team composed of PO1 Desierto, PO1 Floreta and
SPO1 Villalonghan posted themselves at the corner of Saipon and
McArthur Highway to await Tudtud's arrival.[10] All wore civilian
clothes.[11]

.... It is desirable that criminals should be detected, and to that end

that all available evidence should be used. It also is desirable that
the government should not itself foster and pay for other crimes,
when they are the means by which the evidence is to be obtained.
If it pays its officers for having got evidence by crime, I do not see
why it may not as well pay them for getting it in the same way, and
I can attach no importance to protestations of disapproval if it
knowingly accepts and pays and announces that it will pay for the
fruits. We have to choose, and for my part I think it a less evil that
some criminals should escape than that the government should
play an ignoble part.

About 8:00 later that evening, two men disembarked from a bus
and helped each other carry a carton[12] marked "King Flakes."[13]
Standing some five feet away from the men, PO1 Desierto and PO1
Floreta observed that one of the men fit Tudtud's description.[14]
The
same
man
also
toted
a
plastic
bag.[15]

So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S.[1] On

this occasion, this Court is made to choose between letting
suspected criminals escape or letting the government play an
ignoble part.
Sometime during the months of July and August 1999, the Toril
Police Station, Davao City received a report from a "civilian asset"
named Bobong Solier about a certain Noel Tudtud.[2] Solier related
that his neighbors have been complaining about Tudtud, who was
allegedly responsible for the proliferation of marijuana in their area.
[3]
Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and
their superior, SPO1 Villalonghan,[4] all members of the Intelligence
Section of the Toril Police Station, conducted surveillance in Solier's
neighborhood in Sapa, Toril, Davao City.[5] For five days, they
gathered information and learned that Tudtud was involved in
illegal drugs.[6] According to his neighbors, Tudtud was engaged in
selling marijuana.[7]

PO1 Floreta and PO1 Desierto then approached the suspects and
identified themselves as police officers.[16] PO1 Desierto informed
them that the police had received information that stocks of illegal
drugs would be arriving that night.[17] The man who resembled
Tudtud's description denied that he was carrying any drugs.[18]
PO1 Desierto asked him if he could see the contents of the box.[19]
Tudtud obliged, saying, "it was alright."[20] Tudtud opened the box
himself as his companion looked on.[21]
The box yielded pieces of dried fish, beneath which were two
bundles, one wrapped in a striped plastic bag[22] and another in
newspapers.[23] PO1 Desierto asked Tudtud to unwrap the
packages.[24] They contained what seemed to the police officers
as marijuana leaves.[25]
The police thus arrested Tudtud and his companion, informed them
of their rights and brought them to the police station.[26] The two
did
not
resist.[27]
The confiscated items were turned over to the Philippine National
Police (PNP) Crime Laboratory for examination.[28] Forensic tests
conducted by Police Chief Inspector Noemi Austero, forensic
chemist of the PNP Crime Laboratory, Region XI, on specimens
taken from the confiscated items confirmed the police officers'
suspicion. The plastic bag contained 3,200 grams of marijuana
leaves while the newspapers contained another 890 grams.[29]

On August 1, 1999, Solier informed the police that Tudtud had

PALISOC & SARMIENTO

342 | P a g e

Police Chief Inspector Austero reduced her findings in her report,

Physical Sciences Report No. D-220-99 dated 2 August 1999.[30]
Noel Tudtud and his companion, Dindo Bulong, were subsequently
charged[31] before the Regional Trial Court (RTC) of Davao City with
illegal possession of prohibited drugs.[32] Upon arraignment, both
accused pleaded not guilty.[33] The defense, however, reserved
their right to question the validity of their arrest and the seizure of
the
evidence
against
them.[34]
Trial ensued thereafter.
The prosecution presented five witnesses, namely, arresting
officers PO1 Desierto and PO1 Floreta, their civilian informant
Bobong Solier, forensic chemist Police Chief Inspector Noemi
Austero, and SPO3 Nicolas Algabre, exhibit custodian of the PNP
Crime Laboratory. Said witnesses testified to the foregoing
narration of facts.

"What is that?" the man asked.[46] Tudtud replied that he did not
know.[47] Without even unwrapping the cellophane, the man said it
was marijuana and abruptly handcuffed Tudtud.[48]
Simultaneously, another man was pointing a firearm at Dindo
Bolong at the other side of the street, some eight meters from
Tudtud.[49]
Bolong recounted that he was on his way to a relative in Daliao
after attending a cousin's wedding in Hagonoy, Davao del Sur when
he was accosted.[50] After alighting the bus, Bolong crossed the
street.[51] Someone then approached him and pointed a gun at
him.[52] The man ordered him not to move and handcuffed him.
[53] Bolong asked why he was being arrested but the man just told
him to go with them.[54]
The suspects were then taken to the police station where, they
would later claim, they met each other for the first time.[55]

The accused, denying the charges against them, cried frame-up.

Noel Tudtud recalled that on August 1, 1999 he had gone to
Kabacan, North Cotabato to sell pairs of Levi's pants, which was his
"sideline."[35] At about 5:00 in the afternoon, he returned to Davao
City by bus.[36] Upon reaching Toril, Tudtud, along with less than
ten
passengers,
got
down
the
bus.[37]
Suddenly, a man who identified himself as a police officer
approached him, pointing a .38 caliber revolver.[38] The man told
him not to run.[39] Tudtud raised his arms and asked, "Sir, what is
this about?"[40] The man answered that he would like to inspect
the plastic bag Tudtud was carrying, and instructed Tudtud to open
the bag, which revealed several pairs of Levi's pants.[41]
The man then directed Tudtud to open a carton box some two
meters away.[42] According to Tudtud, the box was already there
when he disembarked the bus.[43] Tudtud told the man the box
was not his, but proceeded to open it out of fear after the man
again pointed his revolver at him.[44] Tudtud discovered pieces of
dried fish, underneath which was something wrapped in
cellophane.[45]

PALISOC & SARMIENTO

Assailing the credibility of informant Bobong Solier, the defense

offered the testimonies of Felicia Julaton,[56] Branch 3 Clerk of
Court, Claudio Bohevia,[57] Branch 7 Clerk of Court, and Mercedita
Abunda,[58] Branch 9 Utility Clerk, all of the Davao City Municipal
Trial Circuit Court. They testified and presented court documents
showing that one "Bobo" or "Bobong" Ramirez was charged in their
respective branches with various crimes, specifically, light threats,
less serious physical injuries and robbery. The defense asserted
that the "Bobo" or "Bobong" Ramirez accused in these cases is the
same person as the informant Bobong Solier.[59]
Swayed by the prosecution's evidence beyond reasonable doubt,
the RTC rendered judgment convicting both accused as charged
and sentencing them to suffer the penalty of reclusion perpetua
and to pay a fine of P500,000.00.[60]
On appeal, Noel Tudtud and Dindo Bolong assign, among other
errors, the admission in evidence of the marijuana leaves, which
they claim were seized in violation of their right against
unreasonable
searches
and
seizures.

343 | P a g e

The right against unreasonable searches and seizures is secured by

Section 2, Article III of the Constitution, which states:

occupant

committed

criminal

activity;

4. Consented warrantless search;

SEC. 2. The right of the people to be secured in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the places to
be searched and the persons or things to be seized.
The rule is that a search and seizure must be carried out through or
with a judicial warrant; otherwise, such search and seizure becomes
"unreasonable" within the meaning of the above-quoted
constitutional provision, and any evidence secured thereby, will be
inadmissible in evidence "for any purpose in any proceeding."[61]
Section 3 (2), Article III of the Constitution explicitly provides:
(2) Any evidence obtained in violation of... the preceding section
shall be inadmissible for any purpose in any proceeding.
The proscription in Section 2, Article III, however, covers only
"unreasonable" searches and seizures. The following instances are
not deemed "unreasonable" even in the absence of a warrant:
1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule
126 of the Rules of Court and prevailing jurisprudence);
2. Search of evidence in "plain view." The elements are: (a) a prior
valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties; (b)
the evidence was inadvertently discovered by the police who have
the right to be where they are; (c) the evidence must be
immediately apparent; (d) "plain view" justified mere seizure of
evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government,
the vehicle's inherent mobility reduces expectation of privacy
especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the

PALISOC & SARMIENTO

5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.[62]
The RTC justified the warrantless search of appellants' belongings
under the first exception, as a search incident to a lawful arrest. It
cited as authorities this Court's rulings in People v. Claudio,[63]
People v. Tangliben,[64] People v. Montilla,[65] and People v.
Valdez.[66] The Office of the Solicitor General (OSG), in arguing for
the affirmance of the appealed decision, invokes the cases of
People v. Maspil, Jr.,[67] People v. Malmstedt,[68] and People v.
Bagista.[69]
A search incidental to a lawful arrest is sanctioned by the Rules of
Court. Prior to its revision in 2000, Section 12,[70] Rule 126 of said
Rules
read
as
follows:
SEC. 12. Search incident to lawful arrest. - A person lawfully
arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense,
without a search warrant.
Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless
arrests:
SEC. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
....
It is significant to note that the search in question preceded the

344 | P a g e

arrest. Recent jurisprudence holds that the arrest must precede the
search; the process cannot be reversed.[71] Nevertheless, a search
substantially contemporaneous with an arrest can precede the
arrest if the police have probable cause to make the arrest at the
outset of the search.[72] The question, therefore, is whether the
police in this case had probable cause to arrest appellants.
Probable cause has been defined as:
an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when, in the absence of actual belief of
the arresting officers, the suspicion that the person to be arrested
is probably guilty of committing the offense, is based on actual
facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith of the peace officers
making
the
arrest.[73]
The long-standing rule in this jurisdiction, applied with a great
degree of consistency, is that "reliable information" alone is not
sufficient to justify a warrantless arrest under Section 5 (a), Rule
113. The rule requires, in addition, that the accused perform some
overt act that would indicate that he "has committed, is actually
committing, or is attempting to commit an offense."
In the leading case of People v. Burgos,[74] this Court held that "the
officer arresting a person who has just committed, is committing, or
is about to commit an offense must have personal knowledge of
that fact. The offense must also be committed in his presence or
within his view."[75] In Burgos, the authorities obtained information
that the accused had forcibly recruited one Cesar Masamlok as
member of the New People's Army, threatening the latter with a
firearm. Upon finding the accused, the arresting team searched his
house and discovered a gun as well as purportedly subversive
documents. This Court, in declaring then Section 6 (a), Rule 113 of
the Rules of Court inapplicable, ruled that:
There is no such personal knowledge in this case. Whatever
knowledge was possessed by the arresting officers, it came in its
entirety from the information furnished by Cesar Masamlok. The
location of the firearm was given by the appellant's wife.

PALISOC & SARMIENTO

At the time of the appellant's arrest, he was not in actual

possession of any firearm or subversive document. Neither was he
committing any act which could be described as subversive. He
was, in fact, plowing his field at the time of the arrest.
The right of a person to be secure against any unreasonable seizure
of his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any
exception must clearly fall within the situations when securing a
warrant would be absurd or is manifestly unnecessary as provided
by the Rule. We cannot liberally construe the rule on arrests
without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal
liberty and set back a basic right so often violated and so deserving
of
full
protection.[76]
Consequently, the items seized were held inadmissible, having
been obtained in violation of the accused's constitutional rights
against unreasonable searches and seizures.
In People v. Aminnudin,[77] this Court likewise held the warrantless
arrest and subsequent search of appellant therein illegal, given the
following
circumstances:
... the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or
that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication
that he called for his arrest. To all appearances, he was like any of
the other passengers innocently disembarking from the vessel. It
was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to
apprehension. It was the furtive finger that triggered his arrest. The
identification by the informer was the probable cause as
determined by the officers (and not a judge) that authorized them
to pounce upon Aminnudin and immediately arrest him.[78]
Thus, notwithstanding tips from confidential informants and
regardless of the fact that the search yielded contraband, the mere

345 | P a g e

act of looking from side to side while holding one's abdomen,[79] or

of standing on a corner with one's eyes moving very fast, looking at
every person who came near,[80] does not justify a warrantless
arrest under said Section 5 (a). Neither does putting something in
one's pocket,[81] handing over one's baggage,[82] riding a
motorcycle,[83] nor does holding a bag on board a
trisikad[84]sanction State intrusion. The same rule applies to
crossing the street per se.[85]
Personal knowledge was also required in the case of People v.
Doria.[86] Recently, in People v. Binad Sy Chua,[87] this Court
declared invalid the arrest of the accused, who was walking
towards a hotel clutching a sealed Zest-O juice box. For the
exception in Section 5 (a), Rule 113 to apply, this Court ruled, two
elements must concur: (1) the person to be arrested must execute
an overt act indicating he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt
act is done in the presence or within the view of the arresting
officer. Reliable information alone is insufficient.
In the following cases, the search was held to be incidental to a
lawful arrest because of "suspicious" circumstances: People v.
Tangliben[88] (accused was "acting suspiciously"), People v.
Malmstedt[89] (a bulge on the accused's waist), and People v. de
Guzman[90] (likewise a bulge on the waist of the accused, who was
wearing tight-fitting clothes).
There is, however, another set of jurisprudence that deems
"reliable information" sufficient to justify a search incident to a
warrantless arrest under Section 5 (a), Rule 113, thus deviating
from Burgos. To this class of cases belong People v. Maspil, Jr.,[91]
People v. Bagista,[92] People v. Balingan,[93] People v. Lising,[94]
People v. Montilla,[95] People v. Valdez,[96] and People v. Gonzales.
[97] In these cases, the arresting authorities were acting on
information regarding an offense but there were no overt acts or
suspicious circumstances that would indicate that the accused has
committed, is actually committing, or is attempting to commit the
same. Significantly, these cases, except the last two, come under
some other exception to the rule against warrantless searches.
Thus, Maspil, Jr. involved a checkpoint search, Balingan was a
search of a moving vehicle, Bagista was both, and Lising and

PALISOC & SARMIENTO

Montilla

were

consented

searches.

Nevertheless, the great majority of cases conforms to the rule in

Burgos, which, in turn, more faithfully adheres to the letter of
Section 5(a), Rule 113. Note the phrase "in his presence" therein,
connoting personal knowledge on the part of the arresting officer.
The right of the accused to be secure against any unreasonable
searches on and seizure of his own body and any deprivation of his
liberty being a most basic and fundamental one, the statute or rule
that allows exception to the requirement of a warrant of arrest is
strictly construed. Its application cannot be extended beyond the
cases specifically provided by law.[98]
The cases invoked by the RTC and the OSG are, therefore, gravely
misplaced. In Claudio,[99] the accused, who was seated aboard a
bus in front of the arresting officer, put her bag behind the latter,
thus arousing the latter's suspicion. In Tangliben and Malmstedt,
the
accused
had
also
acted
suspiciously.
As noted earlier, Maspil, Jr., Bagista and Montilla were justified by
other exceptions to the rule against warrantless searches. Montilla,
moreover, was not without its critics. There, majority of the Court
held:
Appellant insists that the mere fact of seeing a person carrying a
traveling bag and a carton box should not elicit the slightest
suspicion of the commission of any crime since that is normal. But
precisely, it is in the ordinary nature of things that drugs being
illegally transported are necessarily hidden in containers and
concealed from view. Thus, the officers could reasonably assume,
and not merely on a hollow suspicion since the informant was by
their side and had so informed them, that the drugs were in
appellant's luggage. It would obviously have been irresponsible, if
now downright absurd under the circumstances, to require the
constable to adopt a "wait and see" attitude at the risk of
eventually losing the quarry.
Here, there were sufficient facts antecedent to the search and
seizure that, at the point prior to the search were already
constitutive of probable cause, and which by themselves could
properly create in the minds of the officers a well-grounded and

346 | P a g e

reasonable belief that appellant was in the act of violating the law.
The search yielded affirmance both of that probable cause and the
actuality that appellant was then actually committing a crime by
illegally transporting prohibited drugs. With these attendant facts, it
is ineluctable that appellant was caught in flagrante delicto, hence
his arrest and the search of his belongings without the requisite
warrant
were
both
justified.[100]
While concurring with the majority, Mr. Justice Vitug reserved his
vote on the discussion on the warrantless search being incidental to
a lawful arrest. Mr. Justice Panganiban, joined by Messrs. Justices
Melo
and
Puno,
filed
a
Separate
Opinion.
Although likewise concurring in the majority's ruling that appellant
consented to the inspection of his baggage, Justice Panganiban
disagreed with the conclusion that the warrantless search was
incidental to a lawful arrest. He argued that jurisprudence required
personal knowledge on the part of the officers making the in
flagrante delicto arrest. In Montilla, the appellant "did not exhibit
any overt act or strange conduct that would reasonably arouse in
their minds suspicion that he was embarking on some felonious
enterprise."

arrests, searches and seizures. Everyone would be practically at the

mercy of so-called informants, reminiscent of the makapilis during
the Japanese occupation. Any one whom they point out to a police
officer as a possible violator of the law could then be subject to
search and possible arrest. This is placing limitless power upon
informants who will no longer be required to affirm under oath their
accusations, for they can always delay their giving of tips in order
to justify warrantless arrests and searches. Even law enforcers can
use this as an oppressive tool to conduct searches without
warrants, for they can always claim that they received raw
intelligence information only on the day or afternoon before. This
would clearly be a circumvention of the legal requisites for validly
effecting an arrest or conducting a search and seizure. Indeed the
majority's ruling would open loopholes that would allow
unreasonable
arrests,
searches
and
seizures.[101]
Montilla would shortly find mention in Justice Panganiban's
concurring opinion in People v. Doria, supra, where this Court
ruled:

....

Accused-Appellant Gaddao was arrested solely on the basis of the

alleged identification made by her co-accused. PO3 Manlangit,
however, declared in his direct examination that appellant Doria
named his co-accused in response to his (PO3 Manlangit's) query as
to where the marked money was. Appellant Doria did not point to
appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills. This identification does
not necessarily lead to the conclusion that appellant Gaddao
conspired with her co-accused in pushing drugs. Appellant Doria
may have left the money in her house, with or without any
conspiracy. Save for accused-appellant Doria's word, the Narcom
agents had no showing that the person who affected the warantless
arrest had, in his own right, knowledge of facts implicating the
person arrested to the perpetration of a criminal offense, the arrest
is
legally
objectionable.[102]
[Italics
in
the
original.]

To say that "reliable tips" constitute probable cause for a

warrantless arrest or search is in my opinion, a dangerous
precedent and places in great jeopardy the doctrines laid down in
many decisions made by this Court, in its effort to zealously guard
and protect the sacred constitutional right against unreasonable

Expressing his accord with Mr. Justice Puno's ponencia, Justice

Panganiban said that Doria "rightfully brings the Court back to wellsettled doctrines on warrantless arrests and searches, which have
seemingly been modified through an obiter in People v. Ruben
Montilla."[103]

Law and jurisprudence in fact require stricter grounds for valid

arrests and searches without warrant than for the issuance of
warrants therefore. In the former, the arresting person must have
actually witnessed the crime being committed or attempted by the
person sought to be arrested; or he must have personal knowledge
of facts indicating that the person to be arrested perpetrated the
crime that had just occurred. In the latter case, the judge simply
determines personally from testimonies of witnesses that there
exists reasonable grounds to believe that a crime was committed
by
the
accused.

PALISOC & SARMIENTO

347 | P a g e

Montilla, therefore, has been seemingly discredited insofar as it

sanctions searches incidental to lawful arrest under similar
circumstances. At any rate, Montilla was a consented search. As will
be demonstrated later, the same could not be said of this case.

Q - For how long have you know [sic] this fact of alleged activity of
Tudtud in proliferation of marijuana?

That leaves the prosecution with People v. Valdez, which, however,

involved an "on-the-spot information." The urgency of the
circumstances, an element not present in this case, prevented the
arresting officer therein from obtaining a warrant.

....

Appellants in this case were neither performing any overt act or

acting in a suspicious manner that would hint that a crime has
been, was being, or was about to be, committed. If the arresting
officers' testimonies are to be believed, appellants were merely
helping each other carry a carton box. Although appellant Tudtud
did appear "afraid and perspiring,"[104] "pale"[105] and
"trembling,"[106] this was only after, not before, he was asked to
open the said box.
In no sense can the knowledge of the herein arresting officers that
appellant Tudtud was in possession of marijuana be described as
"personal," having learned the same only from their informant
Solier. Solier, for his part, testified that he obtained his information
only from his neighbors and the friends of appellant Tudtud:
Q - What was your basis in your report to the police that Tudtud is
going to Cotabato and get stocks of marijuana?

A - About a month.

Q - Regarding the report that Tudtud went to Cotabato to get stocks

of marijuana which led to his apprehension sometime in the
evening of August 1 and according to the report [which] is based on
your report my question is, how did you know that Tudtud will be
bringing along with him marijuana stocks on August 1, 1999?
....
A - Because of the information of his neighbor.[107]
In other words, Solier's information itself is hearsay. He did not even
elaborate on how his neighbors or Tudtud's friends acquired their
information that Tudtud was responsible for the proliferation of
drugs in their neighborhood.
Indeed, it appears that PO1 Floreta himself doubted the reliablility
of their informant. He testified on cross-examination:
Q - You mean to say that Bobot Solier, is not reliable?
A - He is trustworthy.

A - Because of the protest of my neighbors who were saying who

will be the person whou [sic] would point to him because he had
been giving trouble to the neighborhood because according to
them there are [sic] proliferation of marijuana in our place. That
was
the
complained
[sic]
of
our
neighbors.
Q - Insofar as the accused Tudtud is concerned what was your basis
in reporting him particularly?

Q - Why [did] you not consider his information not reliable if he is

reliable?
A - (witness did not answer).
ATTY. CA'ETE:
Never mind, do not answer anymore. That's all.[108]

A - His friends were the once who told me about it.

The prosecution, on re-direct examination, did not attempt to
extract any explanation from PO1 Floreta for his telling silence.

PALISOC & SARMIENTO

348 | P a g e

Confronted with such a dubious informant, the police perhaps felt it

necessary to conduct their own "surveillance." This "surveillance,"
it turns out, did not actually consist of staking out appellant Tudtud
to catch him in the act of plying his illegal trade, but of a mere
"gather[ing] of information from the assets there."[109] The police
officers who conducted such "surveillance" did not identify who
these "assets" were or the basis of the latter's information. Clearly,
such information is also hearsay, not of personal knowledge.
Neither were the arresting officers impelled by any urgency that
would allow them to do away with the requisite warrant, PO1
Desierto's assertions of lack of time[110] notwithstanding. Records
show that the police had ample opportunity to apply for a warrant,
having received Solier's information at around 9:00 in the morning;
Tudtud, however, was expected to arrive at around 6:00 in the
evening of the same day.[111] In People v. Encinada, supra, the
Court ruled that there was sufficient time to procure a warrant
where the police officers received at 4:00 in the afternoon an
intelligence report that the accused, who was supposedly carrying
marijuana, would arrive the next morning at 7:00 a.m.:
Even if the information was received by Bolonia about 4:00 p.m. of
May 20, 1992 at his house, there was sufficient time to secure a
warrant of arrest, as the M/V Sweet Pearl was not expected to dock
until 7:00 a.m. the following day. Administrative Circular No. 13
allows application for search warrants even after office hours:
"3. Raffling shall be strictly enforced, except only in case where an
application for search warrant may be filed directly with any judge
whose jurisdiction the place to be searched is located, after office
hours, or during Saturdays, Sundays, and legal holidays, in which
case the applicant is required to certify under oath the urgency of
the issuance thereof after office hours, or during Saturdays,
Sundays and legal holidays;" . . ..
The same procedural dispatch finds validation and reiteration in
Circular No. 19, series of 1987, entitled "Amended Guidelines and
Procedures on Application for search warrants for Illegal Possession
of Firearms and Other Serious Crimes Filed in Metro Manila Courts
and Other Courts with Multiple Salas":

PALISOC & SARMIENTO

"This Court has received reports of delay while awaiting raffle, in

acting on applications for search warrants in the campaign against
loose firearms and other serious crimes affecting peace and order.
There is a need for prompt action on such applications for search
warrant. Accordingly, these amended guidelines in the issuance of
a search warrant are issued:
1. All applications for search warrants relating to violation of the
Anti-subversion Act, crimes against public order as defined in the
Revised Penal Code, as amended, illegal possession of firearms
and/or ammunition and violations of the Dangerous Drugs Act of
1972, as amended, shall no longer be raffled and shall immediately
be taken cognizance of and acted upon by the Executive Judge of
the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial
Court under whose jurisdiction the place to be searched is located.
2. In the absence of the Executive Judge, the Vice-Executive Judge
shall take cognizance of and personally act on the same. In the
absence of the Executive Judge or Vice-Executive Judge, the
application may be taken cognizance of and acted upon by any
judge
of
the
Court
where
application
is
filed.
3. Applications filed after office hours, during Saturdays, Sundays
and holidays, shall likewise be taken cognizance of and acted upon
by any judge of the Court having jurisdiction of the place to be
searched, but in such cases the applicant shall certify and state the
facts under oath, to the satisfaction of the judge, that its issuance
is urgent.
4. Any judge acting on such application shall immediately and
without delay personally conduct the examination of the applicant
and his witnesses to prevent the possible leakage of information.
He shall observe the procedures, safeguards, and guidelines for the
issuance of search warrants provided for in this Court's
Administrative Circular No. 13, dated October 1, 1985."[112] [Italics
in the original.]
Given that the police had adequate time to obtain the warrant, PO1
Floreta's testimony that the real reason for their omission was their

349 | P a g e

belief that they lacked sufficient basis to obtain the same assumes
greater significance. This was PO1 Floreta's familiar refrain:
Q - When Solier reported to you that fact, that Tudtud will be
coming from Cotabato to get that (sic) stocks, you did not go to
court to get a search warrant on the basis of the report of Bobot
Solier?

A - Yes, sir.
Q - And it can be negotiated by thirty minutes by a jeep ride?
A - Yes, sir.

A - No.

Q - And you can asked [sic] the assistance of any prosecutor to

apply for the search warrant or the prosecutor do [sic] not assist?

Q - Why?

A - They help.

A - Because we have no real basis to secure the search warrant.

Q - But you did not come to Davao City, to asked [sic] for a search
warrant?

Q - When you have no real basis to secure a search warrant, you

have also no real basis to search Tudtud and Bulong at that time?
A - Yes, sir.
....
Q - And Bobot Solier told you that Tudtud, that he would already
bring
marijuana?
A - Yes, sir.
Q - And this was 9:00 a.m.?
A - Yes, sir.
Q - The arrival of Tudtud was expected at 6:00 p.m.?

A - As I said, we do not have sufficient basis.[113]

It may be conceded that "the mere subjective conclusions of a
police officer concerning the existence of probable cause is not
binding on [the courts] which must independently scrutinize the
objective facts to determine the existence of probable cause" and
that "a court may also find probable cause in spite of an officer's
judgment that none exists."[114] However, the fact that the
arresting officers felt that they did not have sufficient basis to
obtain a warrant, despite their own information-gathering efforts,
raises serious questions whether such "surveillance" actually
yielded any pertinent information and even whether they actually
conducted any information-gathering at all, thereby eroding any
claim to personal knowledge.
Finally, there is an effective waiver of rights against unreasonable
searches and seizures if the following requisites are present:

A - Yes, sir.
1. It must appear that the rights exist;
Q - Toril is just 16 kilometers from Davao City?
A - Yes, sir.
Q - And the Office of the Regional Trial Court is only about 16
kilometers, is that correct?

2. The person involved had knowledge, actual or constructive, of

the existence of such right;
3. Said person had an actual intention to relinquish the right.[115]
Here, the prosecution failed to establish the second and third

PALISOC & SARMIENTO

350 | P a g e

requisites. Records disclose that when the police officers introduced

themselves as such and requested appellant that they see the
contents of the carton box supposedly containing the marijuana,
appellant Tudtud said "it was alright." He did not resist and opened
the box himself.
The fundamental law and jurisprudence require more than the
presence of these circumstances to constitute a valid waiver of the
constitutional right against unreasonable searches and seizures.
Courts indulge every reasonable presumption against waiver of
fundamental constitutional rights; acquiescence in the loss of
fundamental rights is not to be presumed.[116] The fact that a
person failed to object to a search does not amount to permission
thereto.

A - A 38 cal. Revolver.
Q - How did he point it at you?
A - Like this (Witness demonstrating as if pointing with his two arms
holding something towards somebody).
Q - This man[,] what did he tell you when he pointed a gun at you?
A - He said do not run.
Q - What did you do?
A - I raised my hands and said "Sir, what is this about?"

.... As the constitutional guaranty is not dependent upon any

affirmative act of the citizen, the courts do not place the citizen in
the position of either contesting an officer's authority by force, or
waiving his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the
supremacy of the law.[117] [Underscoring supplied.]
Thus, even in cases where the accused voluntarily handed her
bag[118] or the chairs[119] containing marijuana to the arresting
officer, this Court held there was no valid consent to the search.

Q - Why did you call him Sir?

A - I was afraid because when somebody is holding a gun, I am
afraid.
Q - Precisely, why did you address him as Sir?
A - Because he was holding a gun and I believed that somebody
who is carrying a gun is a policeman.
Q - When you asked him what is this? What did he say?

On the other hand, because a warrantless search is in derogation of

a constitutional right, peace officers who conduct it cannot invoke
regularity in the performance of official functions and shift to the
accused the burden of proving that the search was unconsented.
[120]
In any case, any presumption in favor of regularity would be
severely diminished by the allegation of appellants in this case that
the arresting officers pointed a gun at them before asking them to
open the subject box. Appellant Tudtud testified as follows:

A - He said "I would like to inspect what you are carrying.["]

...
Q - What did you say when you were asked to open that carton
box?
A - I told him that is not mine.
Q - What did this man say?

Q - This person who approached you according to you pointed

something at you[.] [What] was that something?

PALISOC & SARMIENTO

A - He again pointed to me his revolver and again said to open.

351 | P a g e

A - So I proceeded to open for fear of being shot.[121]

welfare, still it may be exercised and the law enforced without

transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify
indifference
to
the
basic
principles
of
government.

Appellants' implied acquiescence, if at all, could not have been

more than mere passive conformity given under coercive or
intimidating circumstances and is, thus, considered no consent at
all within the purview of the constitutional guarantee.[122]
Consequently, appellants' lack of objection to the search and
seizure is not tantamount to a waiver of his constitutional right or a
voluntary submission to the warrantless search and seizure.[123]

Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. Order
is too high a price to pay for the loss of liberty. As Justice Holmes
declared: "I think it is less evil that some criminals escape than that
the government should play an ignoble part." It is simply not
allowed in free society to violate a law to enforce another,
especially if the law violated is the Constitution itself.[128]

As the search of appellants' box does not come under the

recognized exceptions to a valid warrantless search, the marijuana
leaves obtained thereby are inadmissible in evidence. And as there
is no evidence other than the hearsay testimony of the arresting
officers and their informant, the conviction of appellants cannot be
sustained.

Thus, given a choice between letting suspected criminals escape or

letting the government play an ignoble part, the answer, to this
Court,
is
clear
and
ineluctable.

Q - What did you do?

The Bill of Rights is the bedrock of constitutional government. If

people are stripped naked of their rights as human beings,
democracy cannot survive and government becomes meaningless.
This explains why the Bill of Rights, contained as it is in Article III of
the Constitution, occupies a position of primacy in the fundamental
law way above the articles on governmental power.[124]
The right against unreasonable search and seizure in turn is at the
top of the hierarchy of rights,[125] next only to, if not on the same
plane as, the right to life, liberty and property, which is protected
by the due process clause.[126] This is as it should be for, as
stressed by a couple of noted freedom advocates,[127] the right to
personal security which, along with the right to privacy, is the
foundation of the right against unreasonable search and seizure
"includes the right to exist, and the right to enjoyment of life while
existing." Emphasizing such right, this Court declared in People v.
Aruta:
Unreasonable searches and seizures are the menace against which
the constitutional guarantees afford full protection. While the power
to search and seize may at times be necessary to the public

PALISOC & SARMIENTO

WHEREFORE, the Decision of the Regional Trial Court of Davao City

is REVERSED. Appellants Noel Tudtud y Paypa and Dindo Bolong y
Naret are hereby ACQUITTED for insufficiency of evidence. The
Director of the Bureau of Prisons is ordered to cause the immediate
release of appellants from confinement, unless they are being held
for some other lawful cause, and to report to this Court compliance
herewith within five (5) days from receipt hereof.
SO ORDERED.
Consented Search As An Exception To The Rule On Searches And
Seizure
The constitutional immunity against unreasonable searches and
seizures is a personal right which may be waived. [See Rudy
Caballes v. Court of Appeals, G.R. No. 136292, January 15, 2002]
Thus, the following searches and seizures are deemed permissible
by jurisprudence:
1.
2.
3.
4.
5.

search of moving vehicles

seizure in plain view
customs searches
waiver or consent searches
stop and frisk situations (Terry Search) and

352 | P a g e

6. search incidental to a lawful arrest.

The last includes a valid warrantless search and seizure pursuant to
an equally valid warrantless arrest, for, while as a rule, an arrest is
considered legitimate if effected with a valid warrant of arrest, the
Rules of Court recognize permissible warrantless arrests, to wit:
1. arrests in flagrante delicto,
2. arrests effected in hot pursuit, and,
3. arrests of escaped prisoners.
[People v. Lapitaje, G..R. No. 132042, February 19, 2003; Valdez v.
People, G..R. No. 170180, November 23, 2007 (emphasis supplied);
see also People v. Bolasa, G.R. No. 125754. December 22, 1999;
People v. Tudtud, G.R. No. 144037, September 26, 2003; People v.
Agulay, G.R. No. 181747, September 26, 2008; People v. Jack
Racho, G.R. No. 186529, August 3, 2010]

An alleged consent to a warrantless search and seizure cannot be

based merely on the presumption of regularity in the performance
of duty. This presumption by itself, cannot prevail against the
constitutionally protected rights of an individual, and zeal in the
pursuit of criminals cannot ennoble the use of arbitrary methods
that the Constitution itself abhors. [People vs. Baula, G.R. No.
132671, 15 November 2000]
The consent must be voluntary in order to validate an otherwise
illegal detention and search, i.e., the consent is unequivocal,
specific, and intelligently given, uncontaminated by any duress or
coercion. Hence, consent to a search is not to be lightly inferred,
but must be shown by clear and convincing evidence. The question
whether a consent to a search was in fact voluntary is a question of
fact to be determined from the totality of all the circumstances.
Relevant to this determination are the following characteristics of
the person giving consent and the environment in which consent is
given:

Requisites for Valid Consent or Waiver

In case of consented searches or waiver of the constitutional
guarantee against obtrusive searches, it is fundamental that to
constitute a waiver, it must first appear that:
1. the right exists;
2. that the person involved had knowledge, either actual or
constructive, of the existence of such right; and
3. the said person had an actual intention to relinquish the
right.
[People v. Figueroa, G.R. No. 134056, 6 July 2000; See also Rudy
Caballes v. Court of Appeals, G.R. No. 136292, January 15, 2002;
People v. Jesus Nuevas, G.R. No. 170233, February 22, 2003]
Thus, a deaf-mute, though present during the search, cannot be
said to consent to a search. He could not have consented to a
warrantless search when, in the first place, he did not understand
what was happening at that moment. There was no interpreter to
assist him -- a deaf-mute -- during the arrest, search and seizure.
[See People vs. Asis, G.R. No. 142531, 15 October 2002]

PALISOC & SARMIENTO

1.
2.
3.
4.
5.
6.

the age of the defendant;

whether he was in a public or secluded location;
whether he objected to the search or passively looked on;
the education and intelligence of the defendant;
the presence of coercive police procedures;
the defendant's belief that no incriminating evidence will be
found;
7. the nature of the police questioning;
8. the environment in which the questioning took place; and
9. the possibly vulnerable subjective state of the person
consenting.
It is the State which has the burden of proving, by clear and
positive testimony, that the necessary consent was obtained and
that it was freely and voluntarily given.
[See Rudy Caballes v. Court of Appeals, G.R. No. 136292, January
15, 2002; People v. Jesus Nuevas, G.R. No. 170233, February 22,
2003; Rodel Luz v. People, G.R. No. 197788, February 29, 2012]
Who can give consent to a Search

353 | P a g e

The person to be searched, being the very subject of the search,

necessarily should give the consent. If he is physically present
during the search, the waiver could not have come from any other
person. [See People vs. Asis, G.R. No. 142531, 15 October 2002]
If, on the other hand, the person the accused is not present during
the search of his premises, any person present therein can give the
consent required, when, under the circumstances, that is the most
prudent course of action. The officers of the law conducting the
search cannot be blamed if they would act on the appearances, if
there was a person inside who from all indications was ready to
accede to their request. Even common courtesy alone would have
precluded them from inquiring too closely as to why she was there.
Thus, consent by another person is sufficient, if under all the
circumstances, it can readily be concluded that there was consent
sufficient in law to dispense with the need for a search warrant.
[See Jose Lopez v. Commissioner of Customs, G.R. No. L-27968,
December 3, 1975]

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G.R. No. 157870

November 3, 2008
SOCIAL JUSTICE SOCIETY (SJS), petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY (PDEA),respondents.
x-----------------------------------------------x
G.R. No. 158633
November 3, 2008
ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY, respondents.
x-----------------------------------------------x
G.R. No. 161658
November 3, 2008
AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, respondents.
DECISION
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section 36 of
Republic
Act
No.
(RA)
9165,
otherwise
known
as
the Comprehensive Dangerous Drugs Act of 2002, insofar as it
requires mandatory drug testing of candidates for public office,
students of secondary and tertiary schools, officers and employees
of public and private offices, and persons charged before the
prosecutor's office with certain offenses, among other personalities,
is put in issue.
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be
done by any government forensic laboratories or by any of the drug
testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing shall
employ, among others, two (2) testing methods, the screening test
which will determine the positive result as well as the type of drug
used and the confirmatory test which will confirm a positive
screening test. x x x The following shall be subjected to undergo
drug testing:
xxxx
(c) Students of secondary and tertiary schools. - Students of
secondary and tertiary schools shall, pursuant to the related rules
and regulations as contained in the school's student handbook and
with notice to the parents, undergo a random drug testing x x x;
(d) Officers and employees of public and private offices. - Officers
and employees of public and private offices, whether domestic or
overseas, shall be subjected to undergo a random drug test as
contained in the company's work rules and regulations, x x x for
purposes of reducing the risk in the workplace. Any officer or

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employee found positive for use of dangerous drugs shall be dealt

with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor
Code and pertinent provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutor's office with a criminal
offense having an imposable penalty of imprisonment of not less
than six (6) years and one (1) day shall undergo a mandatory drug
test;
(g) All candidates for public office whether appointed or elected
both in the national or local government shall undergo a mandatory
drug test.
In addition to the above stated penalties in this Section, those
found to be positive for dangerous drugs use shall be subject to the
provisions of Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on
Elections)
On December 23, 2003, the Commission on Elections (COMELEC)
issued Resolution No. 6486, prescribing the rules and regulations
on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local
elections. The pertinent portions of the said resolution read as
follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing. - x x x
xxxx
(g) All candidates for public office x x x both in the national or local
government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides
that public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug
test, the public will know the quality of candidates they are electing
and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected x x
x.
NOW THEREFORE, The [COMELEC], pursuant to the authority
vested in it under the Constitution, Batas Pambansa Blg. 881
(Omnibus Election Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby promulgates, the following
rules and regulations on the conduct of mandatory drug testing to
candidates for public office[:]
SECTION 1. Coverage. - All candidates for public office, both
national and local, in the May 10, 2004 Synchronized
National and Local Elections shall undergo mandatory drug test

355 | P a g e

in government forensic laboratories or any drug testing laboratories

monitored and accredited by the Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with
their respective offices, the Comelec Offices and employees
concerned shall submit to the Law Department two (2) separate
lists of candidates. The first list shall consist of those candidates
who complied with the mandatory drug test while the second list
shall consist of those candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of candidates. Before the start of the campaign period, the [COMELEC] shall
prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who failed to
comply with said drug test. x x x
SEC. 5. Effect of failure to undergo mandatory drug test and file
drug test certificate. - No person elected to any public office shall
enter upon the duties of his office until he has undergone
mandatory drug test and filed with the offices enumerated under
Section 2 hereof the drug test certificate herein required.
(Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a
candidate for re - election in the May 10, 2004 elections, 1 filed a
Petition for Certiorari and Prohibition under Rule 65. In it, he seeks
(1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No.
6486 dated December 23, 2003 for being unconstitutional in that
they impose a qualification for candidates for senators in addition
to those already provided for in the 1987 Constitution; and (2) to
enjoin the COMELEC from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of
the Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a natural born citizen of the Philippines, and, on the day of the election, is at
least thirty - five years of age, able to read and write, a registered
voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election.
According to Pimentel, the Constitution only prescribes a maximum
of five (5) qualifications for one to be a candidate for, elected to,
and be a member of the Senate. He says that both the Congress
and COMELEC, by requiring, via RA 9165 and Resolution No. 6486,
a senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that all
candidates for senator must first be certified as drug free. He adds
that there is no provision in the Constitution authorizing the
Congress or COMELEC to expand the qualification requirements of
candidates for senator.

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G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice
Society (SJS), a registered political party, seeks to prohibit the
Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement
Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of
Sec. 36 of RA 9165 on the ground that they are constitutionally
infirm. For one, the provisions constitute undue delegation of
legislative power when they give unbridled discretion to schools
and employers to determine the manner of drug testing. For
another, the provisions trench in the equal protection clause
inasmuch as they can be used to harass a student or an employee
deemed undesirable. And for a third, a person's constitutional right
against unreasonable searches is also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also
seeks in his Petition for Certiorari and Prohibition under Rule 65 that
Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional right to privacy,
the right against unreasonable search and seizure, and the right
against self - incrimination, and for being contrary to the due
process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench
and the matter of the standing of petitioners SJS and Laserna to
sue. As respondents DDB and PDEA assert, SJS and Laserna failed
to allege any incident amounting to a violation of the constitutional
rights mentioned in their separate petitions.2
It is basic that the power of judicial review can only be exercised in
connection with a bona fidecontroversy which involves the statute
sought to be reviewed. 3 But even with the presence of an actual
case or controversy, the Court may refuse to exercise judicial
review unless the constitutional question is brought before it by a
party having the requisite standing to challenge it. 4 To have
standing, one must establish that he or she has suffered some
actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a
favorable action.5
The rule on standing, however, is a matter of procedure; hence, it
can be relaxed for non - traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of
overarching significance to society, or of paramount public
interest.6 There is no doubt that Pimentel, as senator of the
Philippines and candidate for the May 10, 2004 elections, possesses

356 | P a g e

the requisite standing since he has substantial interests in the

subject matter of the petition, among other preliminary
considerations. Regarding SJS and Laserna, this Court is wont to
relax the rule on locus standi owing primarily to the transcendental
importance and the paramount public interest involved in the
enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486
impose an additional qualification for candidates for senator?
Corollarily, can Congress enact a law prescribing qualifications for
candidates for senator in addition to those laid down by the
Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right
to privacy, the right against unreasonable searches and seizure,
and the equal protection clause? Or do they constitute undue
delegation of legislative power?
Pimentel Petition(Constitutionality of Sec. 36[g] of RA 9165
and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject
to the provisions on nuisance candidates, a candidate for senator
needs only to meet the qualifications laid down in Sec. 3, Art. VI of
the Constitution, to wit: (1) citizenship, (2) voter registration, (3)
literacy, (4) age, and (5) residency. Beyond these stated
qualification requirements, candidates for senator need not possess
any other qualification to run for senator and be voted upon and
elected as member of the Senate. The Congress cannot validly
amend or otherwise modify these qualification standards, as it
cannot disregard, evade, or weaken the force of a constitutional
mandate,7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA
9165 should be, as it is hereby declared as, unconstitutional. It is
basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act
shall be valid if it conflicts with the Constitution. 8 In the discharge of
their defined functions, the three departments of government have
no choice but to yield obedience to the commands of the
Constitution. Whatever limits it imposes must be observed.9
Congress' inherent legislative powers, broad as they may be, are
subject to certain limitations. As early as 1927, in Government v.
Springer, the Court has defined, in the abstract, the limits on
legislative power in the following wise:

PALISOC & SARMIENTO

Someone has said that the powers of the legislative department of

the Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments
acting under delegated authority, the powers of each of the
departments x x x are limited and confined within the four walls of
the constitution or the charter, and each department can only
exercise such powers as are necessarily implied from the given
powers. The Constitution is the shore of legislative authority
against which the waves of legislative enactment may dash, but
over which it cannot leap.10
Thus, legislative power remains limited in the sense that it is
subject to substantive and constitutional limitations which
circumscribe both the exercise of the power itself and the allowable
subjects of legislation.11 The substantive constitutional limitations
are chiefly found in the Bill of Rights 12 and other provisions, such as
Sec. 3, Art. VI of the Constitution prescribing the qualifications of
candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing
and administering election laws or promulgating rules and
regulations to implement Sec. 36(g), validly impose qualifications
on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to
meet such additional qualification, the COMELEC, to be sure, is also
without such power. The right of a citizen in the democratic process
of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution. 13
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed
COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution.
As couched, said Sec. 36(g) unmistakably requires a candidate for
senator to be certified illegal - drug clean, obviously as a pre condition to the validity of a certificate of candidacy for senator or,
with like effect, a condition sine qua non to be voted upon and, if
proper, be proclaimed as senator - elect. The COMELEC resolution
completes the chain with the proviso that "[n]o person elected to
any public office shall enter upon the duties of his office until he
has undergone mandatory drug test." Viewed, therefore, in its
proper context, Sec. 36(g) of RA 9165 and the implementing
COMELEC Resolution add another qualification layer to what the
1987 Constitution, at the minimum, requires for membership in the
Senate. Whether or not the drug - free bar set up under the
challenged provision is to be hurdled before or after election is
really of no moment, as getting elected would be of little value if
one cannot assume office for non - compliance with the drug testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g)
of RA 9165, that the provision does not expressly state that non -

357 | P a g e

compliance with the drug test imposition is a disqualifying factor or

would work to nullify a certificate of candidacy. This argument may
be accorded plausibility if the drug test requirement is optional. But
the particular section of the law, without exception, made drug testing on those covered mandatory, necessarily suggesting that
the obstinate ones shall have to suffer the adverse consequences
for not adhering to the statutory command. And since the provision
deals with candidates for public office, it stands to reason that the
adverse consequence adverted to can only refer to and revolve
around the election and the assumption of public office of the
candidates. Any other construal would reduce the mandatory
nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning
and effect whatsoever.
While it is anti - climactic to state it at this juncture, COMELEC
Resolution No. 6486 is no longer enforceable, for by its terms, it
was intended to cover only the May 10, 2004 synchronized
elections and the candidates running in that electoral event.
Nonetheless, to obviate repetition, the Court deems it appropriate
to review and rule, as it hereby rules, on its validity as an
implementing issuance.
It ought to be made abundantly clear, however, that the
unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having
infringed the constitutional provision defining the qualification or
eligibility requirements for one aspiring to run for and serve as
senator.
SJS Petition(Constitutionality of Sec. 36[c], [d], [f], and [g]
of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165
for secondary and tertiary level students and public and private
employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and
safeguard in the process "the well being of [the] citizenry,
particularly the youth, from the harmful effects of dangerous
drugs." This statutory purpose, per the policy - declaration portion
of the law, can be achieved via the pursuit by the state of "an
intensive and unrelenting campaign against the trafficking and use
of dangerous drugs x x x through an integrated system of planning,
implementation and enforcement of anti - drug abuse policies,
programs and projects."14 The primary legislative intent is not
criminal prosecution, as those found positive for illegal drug use as
a result of this random testing are not necessarily treated as
criminals. They may even be exempt from criminal liability should
the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to
Confinement, Treatment and Rehabilitation. - A drug dependent or
any person who violates Section 15 of this Act may, by

PALISOC & SARMIENTO

himself/herself or through his/her parent, [close relatives] x x x

apply to the Board x x x for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall bring forth the
matter to the Court which shall order that the applicant be
examined for drug dependency. If the examination x x x results in
the certification that the applicant is a drug dependent, he/she
shall be ordered by the Court to undergo treatment and
rehabilitation in a Center designated by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under the Voluntary
Submission Program. - A drug dependent under the voluntary
submission program, who is finally discharged from confinement,
shall be exempt from the criminal liability under Section 15 of this
Act subject to the following conditions:
xxxx
School children, the US Supreme Court noted, are most vulnerable
to the physical, psychological, and addictive effects of drugs.
Maturing nervous systems of the young are more critically impaired
by intoxicants and are more inclined to drug dependency. Their
recovery is also at a depressingly low rate.15
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure 16 under Sec. 2, Art. III17 of
the Constitution. But while the right to privacy has long come into
its own, this case appears to be the first time that the validity of a
state - decreed search or intrusion through the medium of
mandatory random drug testing among students and employees is,
in this jurisdiction, made the focal point. Thus, the issue tendered in
these proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive
jurisprudence. With respect to random drug testing among school
children, we turn to the teachings of Vernonia School District 47J v.
Acton (Vernonia) and Board of Education of Independent School
District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board
of Education),18 both fairly pertinent US Supreme Court - decided
cases involving the constitutionality of governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to
address the drug menace in their respective institutions following
the discovery of frequent drug use by school athletes. After
consultation with the parents, they required random urinalysis drug
testing for the school's athletes. James Acton, a high school
student, was denied participation in the football program after he
refused to undertake the urinalysis drug testing. Acton forthwith
sued, claiming that the school's drug testing policy violated, inter
alia, the Fourth Amendment19 of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised
in Vernonia, considered the following: (1) schools stand in loco

358 | P a g e

parentis over their students; (2) school children, while not shedding
their constitutional rights at the school gate, have less privacy
rights; (3) athletes have less privacy rights than non - athletes
since the former observe communal undress before and after
sports events; (4) by joining the sports activity, the athletes
voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not
invade a student's privacy since a student need not undress for this
kind of drug testing; and (6) there is need for the drug testing
because of the dangerous effects of illegal drugs on the young. The
US Supreme Court held that the policy constituted reasonable
search under the Fourth20 and 14th Amendments and declared the
random drug - testing policy constitutional.
In Board of Education, the Board of Education of a school in
Tecumseh, Oklahoma required a drug test for high school students
desiring to join extra - curricular activities. Lindsay Earls, a member
of the show choir, marching band, and academic team declined to
undergo a drug test and averred that the drug - testing policy made
to apply to non - athletes violated the Fourth and 14th
Amendments. As Earls argued, unlike athletes who routinely
undergo physical examinations and undress before their peers in
locker rooms, non - athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality
of drug testing even among non - athletes on the basis of the
school's custodial responsibility and authority. In so ruling, said
court made no distinction between a non - athlete and an athlete. It
ratiocinated that schools and teachers act in place of the parents
with a similar interest and duty of safeguarding the health of the
students. And in holding that the school could implement its
random drug - testing policy, the Court hinted that such a test was
a kind of search in which even a reasonable parent might need to
engage.
In sum, what can reasonably be deduced from the above two cases
and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis with respect to their students;
(2) minor students have contextually fewer rights than an adult,
and are subject to the custody and supervision of their parents,
guardians, and schools; (3) schools, acting in loco parentis, have a
duty to safeguard the health and well - being of their students and
may adopt such measures as may reasonably be necessary to
discharge such duty; and (4) schools have the right to impose
conditions on applicants for admission that are fair, just, and nondiscriminatory.
Guided by Vernonia and Board of Education, the Court is of the
view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of educational

PALISOC & SARMIENTO

institutions to require, as a condition for admission, compliance

with reasonable school rules and regulations and policies. To be
sure, the right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited
drugs in the country that threatens the well - being of the
people,21 particularly the youth and school children who usually end
up as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of
students in secondary and tertiary schools is not only acceptable
but may even be necessary if the safety and interest of the student
population, doubtless a legitimate concern of the government, are
to be promoted and protected. To borrow from Vernonia,
"[d]eterring drug use by our Nation's schoolchildren is as important
as enhancing efficient enforcement of the Nation's laws against the
importation of drugs"; the necessity for the State to act is
magnified by the fact that the effects of a drug - infested school are
visited not just upon the users, but upon the entire student body
and faculty.22Needless to stress, the random testing scheme
provided under the law argues against the idea that the testing
aims to incriminate unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA 9165
for officers and employees of public and private offices is
justifiable, albeit not exactly for the same reason. The Court notes
in this regard that petitioner SJS, other than saying that "subjecting
almost everybody to drug testing, without probable cause, is
unreasonable, an unwarranted intrusion of the individual right to
privacy,"23 has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165
violates the right to privacy and constitutes unlawful and/or
unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.24Petitioner Laserna's lament is just as simplistic,
sweeping, and gratuitous and does not merit serious consideration.
Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of Appeals have made
various rulings on the constitutionality of mandatory drug tests in
the school and the workplaces. The US courts have been consistent
in their rulings that the mandatory drug tests violate a citizen's
constitutional right to privacy and right against unreasonable
search and seizure. They are quoted extensively hereinbelow.25
The essence of privacy is the right to be left alone. 26 In context, the
right to privacy means the right to be free from unwarranted
exploitation of one's person or from intrusion into one's private
activities in such a way as to cause humiliation to a person's
ordinary sensibilities. 27 And while there has been general
agreement as to the basic function of the guarantee against

359 | P a g e

unwarranted search, "translation of the abstract prohibition against

unreasonable searches and seizures' into workable broad
guidelines for the decision of particular cases is a difficult task," to
borrow from C. Camara v. Municipal Court.28Authorities are agreed
though that the right to privacy yields to certain paramount rights
of the public and defers to the state's exercise of police power. 29
As the warrantless clause of Sec. 2, Art III of the Constitution is
couched and as has been held, "reasonableness" is the touchstone
of the validity of a government search or intrusion. 30 And whether a
search at issue hews to the reasonableness standard is judged by
the balancing of the government - mandated intrusion on the
individual's privacy interest against the promotion of some
compelling state interest.31 In the criminal context, reasonableness
requires showing of probable cause to be personally determined by
a judge. Given that the drug - testing policy for employees--and
students for that matter--under RA 9165 is in the nature of
administrative search needing what was referred to in Vernonia as
"swift and informal disciplinary procedures," the probable - cause
standard is not required or even practicable. Be that as it may, the
review should focus on the reasonableness of the challenged
administrative search in question.
The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement.
The employees' privacy interest in an office is to a large extent
circumscribed by the company's work policies, the collective
bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation
in a regulated office environment is, in fine, reduced; and a degree
of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion
authorized by the challenged law. Reduced to a question form, is
the scope of the search or intrusion clearly set forth, or, as
formulated inOple v. Torres, is the enabling law authorizing a search
"narrowly drawn" or "narrowly focused"?32
The poser should be answered in the affirmative. For one, Sec. 36
of RA 9165 and its implementing rules and regulations (IRR), as
couched, contain provisions specifically directed towards
preventing a situation that would unduly embarrass the employees
or place them under a humiliating experience. While every officer
and employee in a private establishment is under the law deemed
forewarned that he or she may be a possible subject of a drug test,
nobody is really singled out in advance for drug testing. The goal is

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to discourage drug use by not telling in advance anyone when and

who is to be tested. And as may be observed, Sec. 36(d) of RA 9165
itself prescribes what, in Ople, is a narrowing ingredient by
providing that the employees concerned shall be subjected to
"random drug test as contained in the company's work rules and
regulations x x x for purposes of reducing the risk in the work
place."
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the
employee's privacy and dignity. As to the mechanics of the test, the
law specifies that the procedure shall employ two testing methods,
i.e., the screening test and the confirmatory test, doubtless to
ensure as much as possible the trustworthiness of the results. But
the more important consideration lies in the fact that the test shall
be conducted by trained professionals in access - controlled
laboratories monitored by the Department of Health (DOH) to
safeguard against results tampering and to ensure an accurate
chain of custody.33 In addition, the IRR issued by the DOH provides
that access to the drug results shall be on the "need to know"
basis;34 that the "drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect the
confidentiality of the test results."35Notably, RA 9165 does not
oblige the employer concerned to report to the prosecuting
agencies any information or evidence relating to the violation of
the Comprehensive Dangerous Drugs Act received as a result of the
operation of the drug testing. All told, therefore, the intrusion into
the employees' privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test
results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out
illegal drug in the country and thus protect the well - being of the
citizens, especially the youth, from the deleterious effects of
dangerous drugs. The law intends to achieve this through the
medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory
random drug test.36 To the Court, the need for drug testing to at
least minimize illegal drug use is substantial enough to override the
individual's privacy interest under the premises. The Court can
consider that the illegal drug menace cuts across gender, age
group, and social - economic lines. And it may not be amiss to state
that the sale, manufacture, or trafficking of illegal drugs, with their
ready market, would be an investor's dream were it not for the
illegal and immoral components of any of such activities. The drug
problem has hardly abated since the martial law public execution of
a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern - day scourge. Drug
enforcement agencies perceive a mandatory random drug test to

360 | P a g e

be an effective way of preventing and deterring drug use among

employees in private offices, the threat of detection by random
testing being higher than other modes. The Court holds that the
chosen method is a reasonable and enough means to lick the
problem.
Taking into account the foregoing factors, i.e., the reduced
expectation of privacy on the part of the employees, the compelling
state concern likely to be met by the search, and the well - defined
limits set forth in the law to properly guide authorities in the
conduct of the random testing, we hold that the challenged drug
test requirement is, under the limited context of the case,
reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials
and employees also labor under reasonable supervision and
restrictions imposed by the Civil Service law and other laws on
public officers, all enacted to promote a high standard of ethics in
the public service.37 And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it
should pass the test for civil servants, who, by constitutional
command, are required to be accountable at all times to the people
and to serve them with utmost responsibility and efficiency. 38
Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable
on the ground of undue delegation of power hardly commends itself
for concurrence. Contrary to its position, the provision in question is
not so extensively drawn as to give unbridled options to schools
and employers to determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of secondary and
tertiary schools and officers/employees of public/private offices
should be conducted. It enumerates the persons who shall undergo
drug testing. In the case of students, the testing shall be in
accordance with the school rules as contained in the student
handbook and with notice to parents. On the part of
officers/employees, the testing shall take into account the
company's work rules. In either case, the random procedure shall
be observed, meaning that the persons to be subjected to drug test
shall be picked by chance or in an unplanned way. And in all cases,
safeguards against misusing and compromising the confidentiality
of the test results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue,
in consultation with the DOH, Department of the Interior and Local
Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to
enforce the law. In net effect then, the participation of schools and
offices in the drug testing scheme shall always be subject to the
IRR of RA 9165. It is, therefore, incorrect to say that schools and
employers have unchecked discretion to determine how often,

PALISOC & SARMIENTO

under what conditions, and where the drug tests shall be

conducted.
The validity of delegating legislative power is now a quiet area in
the constitutional landscape.39 In the face of the increasing
complexity of the task of the government and the increasing
inability of the legislature to cope directly with the many problems
demanding its attention, resort to delegation of power, or
entrusting to administrative agencies the power of subordinate
legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the
Court finds no valid justification for mandatory drug testing for
persons accused of crimes. In the case of students, the
constitutional viability of the mandatory, random, and suspicionless
drug testing for students emanates primarily from the waiver by
the students of their right to privacy when they seek entry to the
school, and from their voluntarily submitting their persons to the
parental authority of school authorities. In the case of private and
public employees, the constitutional soundness of the mandatory,
random, and suspicionless drug testing proceeds from the
reasonableness of the drug test policy and requirement.
We find the situation entirely different in the case of persons
charged before the public prosecutor's office with criminal offenses
punishable with six (6) years and one (1) day imprisonment. The
operative concepts in the mandatory drug testing are
"randomness" and "suspicionless." In the case of persons charged
with a crime before the prosecutor's office, a mandatory drug
testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being
made defendants in a criminal complaint. They are not randomly
picked; neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they are singled out
and are impleaded against their will. The persons thus charged, by
the bare fact of being haled before the prosecutor's office and
peaceably submitting themselves to drug testing, if that be the
case, do not necessarily consent to the procedure, let alone waive
their right to privacy. 40 To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for
criminal prosecution, contrary to the stated objectives of RA 9165.
Drug testing in this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the
accused persons are veritably forced to incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No.
161658 and declares Sec. 36(g)of RA 9165 and COMELEC
Resolution
No.
6486 as UNCONSTITUTIONAL;
and
to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633

361 | P a g e

by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL,

but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned
agencies
are,
accordingly,
permanently
enjoined
from
implementing Sec. 36(f) and (g) of RA 9165. No costs.
SO ORDERED.

PALISOC & SARMIENTO

362 | P a g e

PEOPLE OF THE PHILIPPINES, Appellee, versus HUANG ZHEN

HUA and JOGY LEE, Appeellants.
G.R. No. 139301 | 2004-09-29
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision[1] of the Regional Trial Court
(RTC) of Paraaque City, Metro Manila, Branch 259, convicting the
appellants of violation of Section 16, Article III of Republic Act No.
6425,
as
amended.
The Case for the Prosecution
Police operatives of the Public Assistance and Reaction Against
Crime (PARAC) under the Department of Interior and Local
Government received word from their confidential informant that
Peter Chan and Henry Lao,[2] and appellants Jogy Lee and Huang
Zhen Hua were engaged in illegal drug trafficking. The policemen
also learned that appellant Lee was handling the payments and
accounting of the proceeds of the illegal drug trafficking activities
of Lao and Chan.[3] PO3 Belliardo Anciro, Jr. and other police
operatives conducted surveillance operations and were able to
verify that Lao and appellant Lee were living together as husband
and wife. They once spotted Chan, Lao, the appellants and two
others, in a seafood restaurant in Bocobo Street, Ermita, Manila,
late in the evening. On another occasion, the policemen saw Chan,
Lao, and the appellants, at the Celicious Restaurant along R.
Sanchez Street, Ermita, Manila, at about 8:30 p.m. They were
spotted the third time at the Midtown Hotel at about 7:00 p.m. to
8:00 p.m.[4] The police operatives also verified that Chan and Lao
resided at Room Nos. 1245 and 1247, Cityland Condominium, De la
Rosa Street, Makati City, and in a two-storey condominium unit at
No. 19 Atlantic Drive, Pacific Grand Villa, Sto. Nio, Paraaque,
Metro Manila.[5]
On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured
Search Warrant No. 96-801 for violation of Presidential Decree (P.D.)
No. 1866 (illegal possession of firearms and explosives) and Search
Warrant No. 96-802, for violation of Sections 12, 14 and 16 of Rep.
Act No. 6425, as amended, from Judge William M. Bayhon,
Executive Judge of the RTC of Manila.[6] Senior Police Inspector
Lucio Margallo supervised the enforcement of Search Warrant No.
96-801 at the Cityland Condominium at about 11:00 p.m. on
October 29, 1996. With him were PO3 Anciro, Jr., PO3 Wilhelm
Castillo, SPO3 Roger Ferias and seven other policemen of the

PALISOC & SARMIENTO

PARAC, who were all in uniform, as well as a Cantonese interpreter

by the name of Chuang. While no persons were found inside, the
policemen found two kilos of methamphetamine hydrochloride,
popularly known as shabu, paraphernalia for its production, and
machines and tools apparently used for the production of fake
credit cards.[7]
Thereafter, the police operatives received information that Lao and
Chan would be delivering shabu at the Furama Laser Karaoke
Restaurant at the corner of Dasmarias and Mancha Streets,
Manila. The policemen rushed to the area on board their vehicles. It
was 2:00 a.m. of October 26, 1996. The policemen saw Chan and
Lao on board the latter's Honda Civic car. As the two men alighted,
one of the men approached them and introduced himself, but Chan
and Lao fired shots. Thus, a shoot-out ensued between the
members of the raiding team and the two suspects. Chan and Lao
were shot to death during the encounter. The policemen found two
plastic bags, each containing one kilo of shabu, in Lao's car.
The policemen then proceeded to No. 19 Atlantic Drive, Pacific
Grand Villa, to enforce Search Warrant No. 96-802. When the
policemen arrived at the place, they coordinated with Antonio
Pangan, the officer in charge of security in the building.[8] The men
found that the Condominium Unit No. 19 was leased to Lao under
the name Henry Kao Tsung. The policemen, Pangan and two
security guards of the Pacific Grand Villa proceeded to the
condominium unit. Anciro, Jr. knocked repeatedly on the front door,
but no one responded. Pangan, likewise, knocked on the door.[9]
Appellant Lee peeped through the window beside the front door.
[10] The men introduced themselves as policemen,[11] but the
appellant could not understand them as she could not speak
English.[12] The policemen allowed Pangan to communicate with
appellant Lee by sign language and pointed their uniforms to her to
show that they were policemen. The appellant then opened the
door and allowed the policemen, Pangan and the security guards
into the condominium unit.[13] The policemen brought appellant
Lee to the second floor where there were three bedrooms - a
master's bedroom and two other rooms. When asked where she
and Lao slept, appellant Lee pointed to the master's bedroom.[14]
Anciro, Jr., Margallo and PO3 Wilhelm Castillo then searched the
master's bedroom, while Ferias and Pangan went to the other
bedroom where appellant Zhen Hua was sleeping.[15] Ferias
awakened appellant Zhen Hua and identified himself as a
policeman. Appellant Zhen Hua was surprised.[16]
Anciro, Jr. saw a small cabinet inside the master's bedroom about
six feet high. He stood on a chair, opened the cabinet and found

363 | P a g e

two transparent plastic bags each containing one kilo of shabu,[17]

a feeding bottle, a plastic canister[18] and assorted paraphernalia.
[19] Inside the drawer of the bed's headboard, Anciro, Jr. also found
assorted documents, pictures, bank passbooks issued by the Allied
Banking Corporation, credit cards, passports and identification
cards of Lao and Lee.[20]
Anciro, Jr. asked appellant Lee who was the owner of the crystalline
substance, but the latter did not respond because she did not know
English.[21] Anciro, Jr. asked Margallo for instructions on what to do
with the things he had found, and the latter told him to keep the
same for future reference,[22] and as evidence against any other
suspect for illegal drug transactions.[23] Anciro, Jr., Pangan and
Margallo later showed the seized articles to the other members of
the team.[24]
Anciro, Jr. told appellant Lee to bring some of her clothes because
they were bringing her to the PARAC headquarters. Appellant Lee
did as she was told and took some clothes from the cabinet in the
master's bedroom where Anciro, Jr. had earlier found the shabu.
[25]
The policemen brought the appellants to the PARAC headquarters.
The following articles were found and confiscated by the policemen
in the condominium unit:
a. TWO (2) Big Transparent Plastic Bags containing about one (1)
Kilo each of white crystalline granules later tested to be
Methamphetamine Hydrochloride or Shabu, a regulated drug;
b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an
undetermined quantity of suspected Shabu;

and Ferias[29] brought the seized items to the PNP Crime

Laboratory for laboratory examination[30] along with the letterrequest[31]
thereon.
On the same day, Forensic Chemist Officer Isidro L. Cario signed
Chemistry Report No. D-1243-96 which contained his findings on
the laboratory examination of the items which were marked as
Exhibits "A" to "A-4," viz:
SPECIMEN SUBMITTED:
Exh. "A" - One (1) "must de Cartier Paris" carton containing the
following:
Exh. "A-1" - One (1) heat-sealed transparent plastic bag containing
1,000.40 grams of white crystalline substance.
Exh. "A-2" - One (1) heat-sealed transparent plastic bag containing
998.10 grams of white crystalline substance.
Exh. "A-3" - One (1) transparent plastic "Babyflo Nurser" feeding
bottle with pink cover containing 18.52 grams of white crystalline
substance.
Exh. "A-4" - One (1) transparent plastic container with white cover
containing 3.28 grams
of white crystalline
substance.
NOTE: The above-stated specimen were allegedly taken from the
residence of the above-named subjects. xxx
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of prohibited and/or regulated drug.

c. ONE (1) Small Plastic Cannister also containing undetermined

amount of suspected Shabu ....

FINDINGS:

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised

Tooters used for sniffing shabu, Improvised Burners used for
burning Shabu, aluminum foils, etc.;[26]

Qualitative examination conducted on the above-stated specimens,

Exhs. "A-1" through "A-4" gave POSITIVE result to the test for
Methamphetamine hydrochloride, a regulated drug. xxx[32]

Anciro, Jr. placed the articles he found in the cabinet inside a box.
[27] The appellants were then brought to the PARAC headquarters
where they were detained. Pangan signed a Certification[28] that
the search conducted by the policemen had been orderly and
peaceful. Anciro, Jr. affixed his initials on the transparent plastic
bags and their contents, the transparent baby feeding bottle and
the plastic cannister and their contents. On October 26, 1996, he

The police officers executed an affidavit of arrest.[33] Pangan and

the two security guards signed a certification stating that nothing
was destroyed in the condominium unit and that the search was
orderly and peaceful.[34] The policemen also accomplished an
inventory of the articles seized during the search.[35]

PALISOC & SARMIENTO

The appellants were charged of violation of Section 16, Rep. Act No.

364 | P a g e

6425, as amended, in an Information filed in the RTC of Paraaque,

Metro Manila, the accusatory portion of which reads:
That on or about the 26th day of October 1996, in the Municipality
of Paraaque, Metro Manila, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and
confederating together and both of them mutually helping and
aiding one another, not being lawfully authorized to possess or
otherwise use any regulated drug and without the corresponding
license or prescription, did then and there willfully, unlawfully and
feloniously have, in their possession and under their control and
custody, the following to wit:
A. One (1) heat-sealed transparent plastic bag containing 1,000.40
grams of white crystalline substance;
B. One (1) heat-sealed transparent plastic bag containing 998.1
grams of white crystalline substance;
C. One (1) transparent plastic "Babyflo Nurser" feeding bottle with
pink cover containing 18.52 grams of white crystalline substance;
D. One (1) transparent plastic container with white cover containing
3.28 grams of white crystalline substance
which when examined were found to be positive
Methamphetamine Hydrochloride (Shabu), a regulated drug.

for

CONTRARY TO LAW.[36]
Both appellants, assisted by counsel, were duly arraigned on
November 29, 1992, and pleaded not guilty to the charge.
The Case for the Appellants
Appellant Jogy Lee denied the charge. She testified that she was a
resident of Kwantong, China, a college graduate who could not
speak nor understand English. She was once employed in a real
estate firm. One of her co-employees was Huang Zhen Hua.[37]
She met Henry Lao in China sometime in 1995,[38] and he brought
her to Belgium that same year. Lao also helped her procure a
Belguim passport, for he explained that if she only had a Chinese
passport, it would be difficult to secure visas from countries she
wanted to go to and visit; whereas many countries did not require a
Belgian passport holder to secure visas before allowing entry
therein. In the process, he and Lao fell in love and became lovers.

PALISOC & SARMIENTO

Upon Lao's invitation, appellant Lee visited the Philippines as a

tourist for the first time in April 1996. Lao met her at the airport,
and she was, thereafter, brought to a hotel in Manila where she
stayed for less than a month.[39] She returned to the Philippines a
second time and was again billeted in a hotel in Manila. All her
expenses were shouldered by Lao, who was engaged in the garlic
business.[40] As far as she knew, Lao was not engaged in any other
business.[41] In June 1996, she invited her friend, appellant Huang
Zhen Hua to visit the Philippines to enjoy the tourist spots.[42]
They were then in China.
In the evening of October 1, 1996, appellant Lee returned to the
Philippines on a tourist visa. She was fetched by Lao, and she was
brought to his condominium unit at No. 19, Atlantic Drive, Pacific
Grand Villa, Sto. Nio, Paraaque. She had been residing there
since then. She and Lao used to go to the shopping malls[43] and
she even saw Chan once when he cleaned his Nissan car in Lao's
garage.
On October 22, 1996, appellant Zhen Hua arrived from China at the
NAIA and was met by Lao at the airport. He tried to check in at the
Diamond Hotel but Lee told him that he could stay in the
condominium unit. Zhen Hua was brought to the Villa where he had
been staying since then. The appellants had made plans to visit
Cebu.
At about 6:00 a.m. on October 26, 1996, appellant Lee was
sleeping in the master's bedroom at the condominium unit. She
had closed all the windows because she had turned the air
conditioning unit on. Zhen Hua was sleeping in the other bedroom
in the second floor beside the master's bedroom. Lao's Honda Civic
car and Chan's Nissan car were in the garage beside the
condominium unit. Momentarily, Lee heard someone knocking on
the bedroom door. When she opened it, three (3) policemen barged
into the bedroom and at the room where appellant Zhen Hua was
sleeping. Anciro, Jr. was not among the men. Lee did not hear the
policemen knock at the main door before they entered.[44] The
policemen were accompanied by Chuang, a Cantonese interpreter,
who told her that the policemen were going to search the house.
[45] Appellant Lee saw a policeman holding two papers, but no
search warrant was shown to her.[46] She was so frightened.
The policemen placed two plastic bags on the bed before they
searched the master's bedroom. Appellant Lee went to the room of
appellant Zhen Hua and when she returned to the master's
bedroom, she saw shabu on the bed.[47] The policemen took her

365 | P a g e

ring, watch and the P600,000 owned by Lao which had earlier been
placed in the cabinet, her papers and documents, and those of
Lao's as well. She had never seen any shabu in the room before the
incident. Thereafter, she and appellant Zhen Hua were brought to
the PARAC headquarters where they were detained. Chuang, the
cantonese interpreter, informed her that shabu had been found in
the condominium unit and that the policemen were demanding
P5,000,000 for her release. She was also told that if she did not pay
the amount, she would be charged with drug trafficking, and that
the leader of the group who arrested her would be promoted.
However, she told Chuang that she had no money. Since she could
not pay the amount, she was boarded on a PARAC owner-type jeep
and returned to the condominium unit where the policemen took all
the household appliances, such as the television, compact discs,
washing machine, including laundry detergent. Only the sofa and
the bed were not taken. About ten (10) days later, the appellants
secured
the
services
of
counsel.

considering the absence of any aggravating circumstances, this

Court hereby sentences both accused to suffer the penalty of
Reclusion Perpetua and to pay a fine of P500,000.00 each. The
properties seized in accordance with the search warrants issued
relative to this case are hereby ordered confiscated in favor of the
government and the Clerk of Court of this Court is directed to turn
over to the Dangerous Drugs Board, the drugs and paraphernalia
subject
hereof
for
proper
disposition.

Antonio Pangan testified that he and the policemen knocked on the

door to the condominium unit but that no one responded. He
shouted, "Sir Henry," referring to Lao, but there was no response
from inside the condominium. After about three (3) to five (5)
minutes, a policeman kicked the door open and they entered the
house. They went to the second floor and saw the appellants
sleeping.

On appeal to this Court, appellant Zhen Hua, asserts that:

Pangan testified that he did not see any shabu that was seized by
the policemen. He learned that shabu had been found and taken
from the condominium unit only when he saw someone holding up
the substance on television during the daily news program TV
Patrol.[48]
Appellant Zhen Hua also denied the charge. He corroborated the
testimony of appellant Lee that upon her invitation, he arrived in
the Philippines on a tourist visa on October 22, 1996. He claimed
that
he
did
not see Anciro, Jr. in the condominium unit when policemen arrived
and searched the house. He testified that aside from the PARAC
policemen, he was also investigated by policemen from Taiwan.
After trial, the court rendered judgment on January 10, 1999,
convicting both appellants of the crime charged. The decretal
portion
of
the
decision
reads:
WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee
and Huang Zhen Hua GUILTY beyond reasonable doubt for violation
of Sec. 16, Art. III, RA 6425, as amended by RA 7659, and

PALISOC & SARMIENTO

The Clerk of Court is also directed to prepare the Mittimus for the
immediate transfer of both accused Jogy Lee and Huang Zhen Hua
from the Paraaque City Jail to the Bureau of Correccions (sic) in
Muntinlupa
City.
SO ORDERED.[49]
The Present Appeal

First. The evidence for the prosecution, as a whole, is so far as selfcontradictory, inherently improbable and palpably false to be
accepted as a faithful reflection of the true facts of the case;
Second. Appellant Huang Zhen Hua's conviction was based merely
on the trial court's conclusion that he "is not an epitome of first
class tourist and that he appeared nonchalant throughout the
proceedings;"
Third. In convicting said appellant, the court below completely
disregarded the glaring facts and admissions of the prosecution's
principal witnesses that no regulated drug was ever found in his
possession;
Fourth. The trial court, likewise, ignored the fact that the
appellant's arrest was illegal and in violation of his constitutional
and basic rights against arrest without probable cause as
determined by a Judge and that his arraignment did not constitute
a waiver of such right;
Fifth. The trial court failed to consider the fact that the presumption
of regularity of performance of the police officers who took part in
the search had been overcome by prosecution's own evidence,
thereby wrongly giving such presumption substance over and
above the constitutional presumption of innocence of the appellant.
[50]

366 | P a g e

For her part, appellant Lee contends that:

1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF
THE ROOMS IN THE TOWNHOUSE RENTED BY HENRY LAU WERE
MERELY PLANTED BY PARAC OPERATIVES;
1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY
IRREGULAR, DUBIOUS AND UNREASONABLE AS THE SEARCH
WARRANT DID NOT CONTAIN ANY PARTICULAR DESCRIPTION OF
THE ROOM TO BE SEARCHED, NOR WAS THERE ANY INTERPRETER
TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR
UNDERSTAND THE ENGLISH LANGUAGE, DURING THE SEARCH AND
EVEN DURING THE TRIAL;
2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY
LEE UPON THE GROUND THAT HER GUILT WAS NOT ESTABLISHED
BY PROOF BEYOND REASONABLE DOUBT.[51]
For its part, the Office of the Solicitor General (OSG) posits that
appellant Zhen Hua should be acquitted on the ground of
reasonable doubt, but that the conviction of appellant Lee should
be affirmed.
The Court's Ruling
We shall delve into and resolve the assigned errors of the
appellants Huang Zhen Hua and Jogy Lee sequentially.
On Appellant Zhen Hua
The OSG contends that the prosecution failed to muster the
requisite quantum of evidence to prove appellant Zhen Hua's guilt
beyond reasonable doubt for the crime charged, thus:
Huang Zhen Hua denies having anything to do with the bags of
"shabu" found in the townhouse unit of Henry Lau. He claims that
he arrived in the Philippines as a tourist on October 22, 1996, upon
the invitation of Jogy Lee. Allegedly, at the time of his arrest, he
had been in the Philippines for barely four days. He claims that he
was just temporarily billeted as a guest at the townhouse where
Jogy Lee was staying. And that he had no control whatsoever over
said townhouse. He puts emphasis on the fact that the search of his
room turned out to be "negative" and that the raiding team failed
to seize or confiscate any prohibited or regulated drug in his person
or possession. He, therefore, prays for his acquittal.

PALISOC & SARMIENTO

The People submits that Huang Zhen Hua is entitled to acquittal.

The prosecution's evidence fails to meet the quantum of evidence
required to overcome the constitutional presumption of innocence;
thus, regardless of the supposed weakness of his defense, and his
innocence may be doubted, he is nonetheless entitled to an
acquittal (Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited
in People v. Fronda, G.R. No. 130602, March 15, 2000). The
constitutional presumption of innocence guaranteed to every
individual is of primary importance, and the conviction of the
accused must rest not on the weakness of the defense but on the
strength
of
the
evidence
for
the
prosecution.
In the instant case, as pointed out by appellant Huang Zhen Hua,
the trial court erred when it did not give much weight to the
admission made by the prosecution witnesses that no regulated
drug was found in his person. No regulated drug was also found
inside his room or in his other belongings such as suitcases, etc.
Thus, he had no actual or constructive possession of the
confiscated "shabu."
Moreover, it is not disputed that Huang Zhen Hua had only been in
the country for barely four (4) days at the time when he was
arrested. The prosecution was unable to show that in these four (4)
days Huang Zhen Hua committed acts which showed that he was in
cahoots with the drug syndicate Henry Lau and Peter Chan. It was
not even shown that he was together with Henry Lau and Peter
Chan on any occasion. As for Huang Zhen Hua, therefore, there is
no direct evidence of any culpability. Nor is there any circumstantial
evidence from which any culpability may be inferred.[52]
We agree with the OSG. In a case of recent vintage, this Court, in
People vs. Tira,[53] ruminated and expostulated on the juridical
concept of "possession" under Section 16, Article III of Rep. Act No.
6425, as amended, and the evidence necessary to prove the said
crime, thus:
The essential elements of the crime of possession of regulated
drugs are the following: (a) the accused is found in possession of a
regulated drug; (b) the person is not authorized by law or by duly
constituted authorities; and, (c) the accused has knowledge that
the said drug is a regulated drug. This crime is mala prohibita, and,
as such, criminal intent is not an essential element. However, the
prosecution must prove that the accused had the intent to possess
(animus posidende) the drugs. Possession, under the law, includes
not only actual possession, but also constructive possession. Actual
possession exists when the drug is in the immediate physical

367 | P a g e

possession or control of the accused. On the other hand,

constructive possession exits when the drug is under the dominion
and control of the accused or when he has the right to exercise
dominion and control over the place where it is found. Exclusive
possession or control is not necessary. The accused cannot avoid
conviction if his right to exercise control and dominion over the
place where the contraband is located, is shared with another.
Thus, conviction need not be predicated upon exclusive possession,
and a showing of non-exclusive possession would not exonerate the
accused. Such fact of possession may be proved by direct or
circumstantial evidence and any reasonable inference drawn
therefrom. However, the prosecution must prove that the accused
had knowledge of the existence and presence of the drug in the
place under his control and dominion and the character of the drug.
Since knowledge by the accused of the existence and character of
the drugs in the place where he exercises dominion and control is
an internal act, the same may be presumed from the fact that the
dangerous drug is in the house or place over which the accused has
control or dominion, or within such premises in the absence of any
satisfactory
explanation.[54]
In this case, the prosecution failed to prove that the appellant, at
any time, had actual or constructive possession of the regulated
drug found in the master's bedroom where appellant Lee was
sleeping; or that the appellant had accessed the said room at any
given time; or that he had knowledge of the existence of shabu in
appellant
Lee's
bedroom.
Appellant
Zhen
Hua
had arrived in the Philippines upon the invitation of appellant Lee
only on October 22, 1996 or barely four (4) days before the arrival
of the policemen and the search conducted in the condominium
unit leased by Henry Lao. He was a mere visitor of appellant Lee.
There is no evidence that appellant Zhen Hua was aware of the
alleged illegal drug activities and/or transactions of Henry Lao,
Peter Chan and appellant Lee. The policemen did not find any
regulated drug in the room where appellant Zhen Hua was sleeping
when they made their search.
The evidence of the prosecution against appellant Zhen Hua falls
short of the requisite quantum of evidence to prove conspiracy
between him, appellant Lee and Chan or Lao.
There is conspiracy when two or more persons agree to commit a
crime and decide to commit it.[55] Conspiracy cannot be
presumed.[56] Conspiracy must be proved beyond reasonable
doubt like the crime subject of the conspiracy.[57] Conspiracy may
be proved by direct evidence or by proof of the overt acts of the

PALISOC & SARMIENTO

accused, before, during and after the commission of the crime

charged indicative of a common design.[58]
The bare fact that on two or three occasions after the arrival of
appellant Zhen Hua from China, and before the search conducted in
Lao's condominium unit, appellant Zhen Hua had been seen with
Lao, Chan and appellant Lee. Having dinner or lunch at a restaurant
does not constitute sufficient proof that he had conspired with them
or with any of them to possess the subject-regulated drug. Mere
association with the principals by direct participation or mere
knowledge of conspiracy, without more, does not suffice.[59]
Anciro, Jr. even admitted that during his surveillance, he could have
mistaken appellant Zhen Hua for another group of Chinese persons
who were also being watched.[60] Appellant Zhen Hua should,
thus, be acquitted.
On Appellant Lee
Appellant Lee avers that certain irregularities were attendant in the
issuance and implementation of Search Warrant No. 96-802, as
follows: (a) the policemen who implemented the search warrant
failed in their duty to show to her the said warrant, inform her of
their authority and explain their presence in the condominium unit;
(b) the policemen gained entry into the condominium unit by force
while she was sleeping; and (c) articles and personal effects owned
by her and Lao were taken and confiscated by the policemen,
although
not
specified
in
the
search
warrant.
The appellant concludes that the articles procured by the
policemen on the occasion of the search of the condominium unit
are
inadmissible
in
evidence.
Appellant Lee, likewise, contends that she was a victim of a frameup because the policemen planted the regulated drug on her bed
even before they searched the bedroom. She went to the room of
appellant Zhen Hua to find out if he was already awake, and when
she returned to the bedroom, she noticed shabu on her bed. She
avers that the sole testimony of Anciro, Jr., that he found the
regulated drug in the master's bedroom, is incredible because he
was not with the policemen who barged into the bedroom. She
notes that even Pangan, the caretaker of the Villa, testified that he
did not see any illegal drug confiscated by the policemen.
According to appellant Lee, the trial court erred in convicting her of
the crime charged, considering that Lao and Chan were the
suspects identified in the search warrants, not her. She avers that
she had no knowledge of the alleged illegal drug transactions of her

368 | P a g e

lover Lao. She contends that there was no probable cause for her
arrest as her mere presence in the condominium unit does not
render her liable for the shabu found in the master's bedroom of
the condominium unit leased by Lao. She further avers that the
testimonies of the witnesses for the prosecution are inconsistent;
hence, barren of probative weight. The appellant also asserts that
she was deprived of her right to due process when the trial court
conducted a trial without a Chinese interpreter to assist her.
The OSG, for its part, avers that the police officers are presumed to
have performed their duties. Based on the testimony of Anciro, Jr.,
appellant Lee was shown the search warrant, through the window,
and the policemen identified themselves through their uniforms.
The security guards of the condominium also explained the search
warrant to the appellant. Although she was, at first, reluctant to
open the door, appellant Lee later voluntarily opened the door and
allowed them entry into the unit. There was no evidence of forcible
entry into the unit and no breakage of any door. The OSG further
avers that the appellant had been in the country for quite
sometime already and could not have gotten around without
understanding English. In fact, the OSG argues that when Anciro, Jr.
told the appellant to get some of her clothes since she would be
brought to the police headquarters in Quezon City, she did as she
was told and took her clothes from the cabinet where the shabu
were
found
by
the
policemen.
The OSG further points out that Pangan, the chief of security of the
subdivision who was a witness for appellant Lee, even testified that
the search was orderly. The OSG contends that there was probable
cause for the appellant's arrest because an informant had tipped
off the arresting officers that the appellant was a member of a
syndicate dealing with illegal drugs, and that she handled the
accounts of Lao and Chan. The appellant was not a victim of frameup because she was present when the policemen searched the
master's bedroom where she was sleeping and where she kept her
clothes, and witnessed the discovery of the regulated drugs and
paraphernalia.
We agree with the contention of the appellant that the
constitutional proscription against unreasonable search and seizure
applies to Filipino citizens, as well as to aliens temporarily residing
in the country. The rule against unreasonable search and seizure
forbids every search that is unreasonable; it protects all those
suspected or known to be offenders, as well as the innocent. The
guarantee is as important and imperative as the guarantee of the
other fundamental rights of the citizens.[61] All owes the duty for

PALISOC & SARMIENTO

its effective enforcement lest there shall be an impairment of the

right for the purpose for which it was adopted.[62]
Section 7, Rule 126 of the Revised Rules of Criminal Procedure
provides:
SEC. 7. Right to break door or window to effect search. - The officer,
if refused admittance to the place of directed search after giving
notice of his purpose and authority, may break open any outer or
inner door or window of a house or any part of a house or anything
therein to execute the warrant or liberate himself or any person
lawfully aiding him when unlawfully detained therein.
The police officers were obliged to give the appellant notice, show
to her their authority, and demand that they be allowed entry. They
may only break open any outer or inner door or window of a house
to execute the search warrant if, after such notice and demand,
such officers are refused entry to the place of directed search. This
is
known
as
the
"knock
and
announce" principle which is embodied in Anglo-American Law. The
method of entry of an officer into a dwelling and the presence or
absence of such notice are as important considerations in assessing
whether subsequent entry to search and/or arrest is constitutionally
reasonable.[63] In Gouled v. The United States,[64] it was held that
a lawful entry is the indispensable predicate of a reasonable search.
A search would violate the Constitution if the entry were illegal,
whether accomplished by force, by illegal threat or mere show of
force.
The principle may be traced to a statute in England way back in
1275 providing that "if a person takes the beasts of another and
causes them to be driven into a castle or fortress, if the sheriff
makes a solemn demand for the deliverance of the beasts, and if
the person did not cause the beasts to be delivered incontinent, the
king shall cause the said castle or fortress to be beaten down
without recovery." Common law courts appended an important
qualification:
But before he breaks it, he ought to signify the cause of his coming,
and to make request to open doors ..., for the law without a default
in the owner abhors the destruction or breaking of any house
(which is for the habitation and safety of man) by which great
damage and inconvenience might ensue to the party, when no
default is in him; for perhaps he did not know of the process, of
which, if he had noticed, it is to be presumed that he would obey
it...[65]

369 | P a g e

Blackstone simply stated the principle that the sheriff may justify
breaking open doors if the possession be not quietly delivered.[66]
The principle was woven quickly into the fabric of early American
law and in the Fourth Amendment in the United States Federal
Constitution. It is an element of the reasonableness inquiry under
the Fourth Amendment as held in Wilson v. Arkansas.[67]
Generally, officers implementing a search warrant must announce
their presence, identify themselves to the accused and to the
persons who rightfully have possession of the premises to be
searched, and show to them the search warrant to be implemented
by them and explain to them said warrant in a language or dialect
known to and understood by them. The requirement is not a mere
procedural formality but is of the essence of the substantial
provision which safeguards individual liberty.[68] No precise form of
words is required. It is sufficient that the accused has notice of the
officers, their authority and the purpose of the search and the
object to be seized. It must be emphasized that the notice
requirement is designed not only for the protection of the liberty of
the person to be searched or of his property but also the safety and
well-being of the officers serving and implementing the search
warrant. Unless the person to whom the warrant is addressed and
whose property is to be searched is notified of the search warrant
and apprised of the authority of the person serving the warrant, he
may consider the unannounced intrusion into the premises as an
unlawful aggression on his property which he will be justified in
resisting, and in the process, may cause injury even to the life of
the officer implementing the warrant for which he would not be
criminally liable. Also, there is a very real possibility that the police
serving and implementing the search warrant may be misinformed
as to the name or address of the suspect, or to other material
affirmations. Innocent citizens should not suffer the shock, fright,
shame or embarrassment attendant upon an unannounced
intrusion.[69] Indeed, a lawful entry is the indispensable predicate
of a reasonable search. A search would violate the constitutional
guarantee against unreasonable search and seizure if the entry
were illegal, whether accomplished by force, or by threat or show of
force or obtained by stealth, or coercion.[70]
Unannounced intrusion into the premises is permissible when (a) a
party whose premises or is entitled to the possession thereof
refuses, upon demand, to open it; (b) when such person in the
premises already knew of the identity of the officers and of their
authority and persons; (c) when the officers are justified in the
honest belief that there is an imminent peril to life or limb; and (d)
when those in the premises, aware of the presence of someone
outside (because, for example, there has been a knock at the door),

PALISOC & SARMIENTO

are then engaged in activity which justifies the officers to believe

that an escape or the destruction of evidence is being attempted.
Suspects have no constitutional right to destroy evidence or
dispose of evidence.[71] However, the exceptions above are not
exclusive or conclusive. At times, without the benefit of hindsight
and ordinarily on the spur of the moment, the officer must decide
whether or not to make an unannounced intrusion into the
premises. Although a search and seizure of a dwelling might be
constitutionally defective, if the police officers' entry was without
prior announcement, law enforcement interest may also establish
the reasonableness of an unannounced entry.[72] Indeed, there is
no formula for the determination of reasonableness. Each case is to
be decided on its own facts and circumstances.[73] In determining
the lawfulness of an unallowed entry and the existence of probable
cause, the courts are concerned only with what the officers had
reason to believe and the time of the entry.[74] In Richards v.
Wisconsin,[75] it was held that:
[1] In order to justify a "no-knock" entry, the police must have a
reasonable suspicion that knocking and announcing their presence,
under the particular circumstances, would be dangerous or futile,
or that it would inhibit the effective investigation of the crime by,
for example, allowing the destruction of evidence. This standard-as
opposed to a probable-cause requirement-strikes the appropriate
balance between the legitimate law enforcement concerns at issue
in the execution of search warrants and the individual privacy
interest affected by no-knock entries.[76]
As articulated in Benefield v. State of Florida,[77] what constitutes
breaking includes the lifting of a latch, turning a door knob,
unlocking a chain or hasp, removing a prop to or pushing open a
closed door of entrance to the house, even a closed screen door.
[78] However, entry obtained through the use of deception,
accomplished
without
force
is
not
a
"breaking"
requiring officers to first announce their authority and purpose
because the reasons behind the rule are satisfied - there was no
real likelihood of violence, no unwarranted intrusion or privacy and
no damage to the residence of the accused.[79]
As to how long an officer implementing a search warrant must wait
before breaking open any door cannot be distilled into a
constitutional stopwatch. Each case has to be decided on a case-tocase basis requiring an examination of all the circumstances.[80]
The proper trigger point in determining, under the "knock and
announce" rule, whether the police waited long enough before
entering the residence to execute a warrant, is when those inside
should have been alerted that the police wanted entry to execute a

370 | P a g e

warrant.[81]

Villa?

In this case, we rule that the policemen complied with Section 7,

Rule 126 of the Revised Rules of Criminal Procedure before entering
the condominium unit. Appellant Lee admitted, when she testified,
that the police officers were accompanied by Chuang, a Cantonese
interpreter, who informed her that his companions were police
officers and had a search warrant for the premises, and also
explained to her that the officers were going to search the
condominium unit.[82] The appellant was sufficiently aware of the
authority of the policemen, who wore PARAC uniforms, to conduct
the search and their purpose. Moreover, Anciro, Jr. told the
appellant, in English, to bring some clothes with her as she was to
be brought to the police headquarters. Without such request being
interpreted to the appellant, the latter did as she was directed and
took some clothes from the cabinet atop the headboard.[83]

A Yes, Sir.

The evidence on record shows that the police officers knocked on

the outer door before entering the condominium unit, and after a
while, the appellant opened the door and allowed the policemen
and Pangan to enter. Anciro, Jr. testified, thus:
Q Do you still recall Mr. Witness the identities of the security guards
who helped you or assisted you in implementing said search
warrants at Grand Villa Subdivision?
A The OIC of the Home Owners' Association, Antonio Pangan, and
the OIC of the Security Agency and two (2) other security guards.
Q Do you recall the names of those persons you mentioned Mr.
Witness?
A I can hardly recall their names.

Q While you were already at the door of that targeted house to

implement said search warrants, what happened next, if any? What
did
you
do
after
that?
A We knocked on the door and tried to find out if there was
somebody there because the Home Owners' Association doesn't
have any key for the door. We asked them to knock also because
they are the ones who have access with the tenants.
Q And after knocking, what happened next?
A There were around 5 minutes, no one was trying to open the
door. By that time, we thought they were still asleep.
Q And then after that what did you do, if any?
A We asked Mr. Pangan to knock and introduce himself and another
security guard to try to knock on the kitchen which is on the back
door.
Q And then after that?
A And then after that, it was a female person who showed up to
(sic) the window of the kitchen and asked who we are in a sign
language.
Q And this female person who showed up to (sic) the window ... I
withdraw. Were you able to have a good look on that female person
who showed herself thru the window?

Q After having been assisted or coordinated with said security

officers and the OIC of the Home Owners' Association, what did you
do
next?

A Yes, Sir.

A We told them that if we could ask them if they have a duplicate

key and also knock and introduce ourselves, knock on the said
condominium.

A She was identified as Jogy Lee, Sir.[84]

Q Did they do that, the request?

A Yes, Sir.
Q Meaning to say, you arrived at #19 Atlantic Drive, Pacific Grand

PALISOC & SARMIENTO

Q And who is this person Mr. Witness?

The appellant failed to prove that the policemen broke open the
door to gain entry into the condominium unit. She could have asked
the court for an ocular inspection to show the door which was
allegedly broken into by the policemen, or at least adduce in
evidence pictures showing the said breakage. The appellant failed
to do so. The testimony of the appellant is even belied by Pangan,
who was a witness for the appellant, who certified, along with three

371 | P a g e

other security guards, that nothing was destroyed and that the
search was conducted in a peaceful and orderly manner.[85]
We are not impervious of the testimony of Pangan that the
policemen kicked the outer door to gain entry into the
condominium unit, which testimony is seemingly in derogation of
his certification. However, Pangan admitted that the policemen did
so only after knocking on the door for three (3) to five (5) minutes
and after he had called Lao in a loud voice and received no
response from the appellants:
Q Did you come to know the persons wherein your presence was
being required according to your security guards?
A According to my security guards, they introduced themselves as
police operatives.
Q Did you comply with the invitation of these police authorities?
A Yes, they called me and according to them, they will search Unit
19, that is what they told me.
Q Can you please tell us what time did the police operatives
conduct
the
search?

minutes

Q Was there any other occupant other than Henry Kau Chung in
that unit at that time?
A At the second floor, they saw this Jogy Lee and her male
companion whom I do not know.
Q But during the time that you were trying to seek entry to the
door, there was no one who responded, is that correct?
A Pardon, Sir?
Q At the time that you were trying to knock at the door, there was
no one who responded to your knocking at the door?
A Nobody was answering, Sir.
Q And that compelled the police operatives to open the door
forcibly?
A Yes, Sir.[86]

...

they

conducted

the

search,

were

you

there?

A I was there because that unit cannot be opened if the caretaker is

not
present.
Q Are you trying to say that you were the one who opened the door
of that unit occupied by Henry Kau Chung?
A They kicked the door and when nobody opened the door, they
pushed the door and the door was opened.

elapsed?

A Matagal din po silang kumakatok sa pintuan. I said, "Mr. Henry,

pakibuksan n'yo ang pinto, would you mind to open the door, kasi
merong mga police officers na gustong ma-search itong unit mo.
Then, when nobody was answering, they forcibly opened the door.

A I cannot recall anymore because the incident happened in 1996. I

don't know what time was that.
When

had

COURT:
From the first time you knocked at the door, how long a time lapsed
before the police officer broke open the door?
A Matagal din po.
Q For how long?

Q They forcibly opened the door when nobody opened it?

A Maybe for about three to five minutes.

A Kaya naman po ginawa 'yon dahil nandoon naman po ang

caretaker, wala naman pong masamang mangyayari dahil nandoon
naman
po
ang
namamahala.

Q When nobody was answering, they forced open the door?

Q From the time you knocked at the door of this unit up to the time
that the police operatives forcibly break open the door, how many

COURT:

PALISOC & SARMIENTO

A Yes, Your Honor.

372 | P a g e

Continue.[87]
The appellant failed to prove, with clear and convincing evidence,
her contention that Anciro, Jr. placed the shabu on her bed before
he continued his search in the bedroom, and that she was a victim
of frame-up by the policemen. She relied on her testimony and
those of Pangan and Ferias that they did not see Anciro, Jr. discover
and
take
custody
of
the
shabu
in
the
cabinet.
The appellant's defense of frame-up is nothing new. It is a common
and standard line of defense in most prosecutions for violation of
the Dangerous Drugs Law. While such defense cannot and should
not always be considered as contrived, nonetheless, it is generally
rejected for it can easily be concocted but is difficult to prove.
Police officers are, after all, presumed to have acted regularly in the
performance of their official functions, in the absence of clear and
convincing proof to the contrary, or that they are motivated by illwill.[88]
It is true, as testified by Pangan and Ferias that, they did not see
Anciro, Jr. discover and take custody of the shabu subject of this
case. However, as explained by Pangan, he remained in the ground
floor of the condominium unit while Anciro, Jr., Castillo and Margallo
searched the bedroom of appellant Lee and her lover Lao, and
Ferias proceeded to the room occupied by appellant Zhen Hua
where he conducted his search. Thus, Pangan testified:

Q How about the other guards?

A They were also outside.[89]
For his part, Ferias declared:
Q In other words, you did not go inside the biggest room?
A No, Sir.
Q You proceeded to another room where co-accused Huang Zhen
Hua was then sleeping?
A Yes, Sir.
Q What happened next?
A We woke up Huang Zhen Hua and we introduced ourselves to him
as police officers.
Q What was the reaction of Huang Zhenhua?
A He was surprised.[90]
...

Q When the master's bedroom was searched where Jogy Lee was
then, according to you, sleeping, did you accompany the PARAC
members?

Q In other words, you did not go inside the biggest room?

A No, Sir, because I was talking to a member of the PARAC

downstairs.

Q You proceeded to another room where co-accused Huang Zhen

Hua was then sleeping?

Q What about the members of the security force?

A Yes, Sir.

A They were outside, Sir.

Q What happened next?

Q During the search made on the master's bedroom?

A We woke up Huang Zhen Hua and we introduced ourselves to him

as police officers.

A Yes, Sir.
Q How about when the search was made in the room occupied by
Huang Zhen Hua, were you present then?
A No, Sir, I was still downstairs.

PALISOC & SARMIENTO

A No, Sir.

Q What was the reaction of Huang Zhen Hua?

A He was surprised.[91]
Pangan testified that before the police officers conducted their
search in the second floor of the condominium unit, he did not see

373 | P a g e

them

bring

in

anything:

Q But you are very sure that before the police officers searched the
unit, you did not see them bringing anything with them, they were
all
empty-handed?
A I did not see, Sir.[92]
No less than Pangan himself, a witness for the appellants, and three
of the security guards of the subdivision, who accompanied the
policemen in implementing the search warrants, certified that, what
was found inside the condominium unit and confiscated by the
policemen were two plastic bags which contained white crystalline
powder
substances
suspected
to
be
shabu.[93]
The appellant admitted that she saw shabu in her bedroom while
the policemen were there. She claimed that the policemen placed
the plastic bag on the bed before they started the search and that
she noticed the shabu only after he returned from the room of
appellant Zhen Hua to see if he was already awake is hard to
believe.
First. We find it incredible that the policemen placed the shabu on
the appellant's bed, in her full view, for which the latter could be
prosecuted for planting evidence and, if convicted, sentenced to
death under Section 19 of Rep. Act 7659:
SECTION 19. Section 24 of Republic Act No. 6425, as amended,
known as the Dangerous Act of 1972, is hereby amended to read as
follows:
Sec. 24. Penalties for Government Officials and Employees and
Officers and Members of Police Agencies and the Armed Forces,
'Planting' of Evidence.- The maximum penalties provided for [in]
Section 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and
Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if
those found guilty of any of the said offenses are government
officials, employees or officers, including members of police
agencies and the armed forces.
Any such above government official, employee or officer who is
found guilty of "planting" any dangerous drugs punished in
Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act in the person or in the immediate
vicinity of another as evidence to implicate the latter, shall suffer
the
same
penalty
as
therein
provided.

PALISOC & SARMIENTO

Second. The appellant failed to inform her counsel of the alleged

planting of evidence by the policemen; if she had done so, for sure,
the said counsel would have prepared her affidavit and filed the
appropriate motion in court for the suppression of the
things/articles
seized
by
the
policemen.
Third. The appellant failed to charge the policemen with planting of
evidence before or after she was charged of violation of Rep. Act
No.
6425,
as
amended.
Fourth. The appellant cannot even identify and describe the
policeman or policemen who allegedly planted the evidence.
The fact is that, as gleaned from the affidavit of arrest signed by
Anciro, Jr. and Ferias, the articles and substances found and
confiscated from the condominium unit of Lao and appellant Lee at
Atlantic Drive and at the Cityland condominium unit of Lao and
Chan
were
itemized
as
follows:
a. TWO (2) Big Transparent Plastic Bags containing about one (1)
kilo each of white crystalline granules later tested to be
Methamphetamine Hydrochloride or Shabu, a regulated drug;
b. ONE (1) Transparent Plastic Baby Feeding Bottle containing
undetermined quantity of suspected Shabu;
c. ONE (1) Small Plastic Canister also containing undetermined
amount of suspected Shabu ...
d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised
Tooters used for sniffing shabu, Improvised Burners used for
burning Shabu, aluminum foils, etc.;
...
a. TWO (2) Kettles/Pots containing more or less 1 kilos of Raw
Shabu or Methamphetamine Hydrochloride;
b. Two (2) Big Transparent Plastic Bags containing more or less Two
(2) Kilos of Shabu;
c. Three (3) Plastic Basins, small, medium, large, used for
containers of finished/cooked Shabu;
c. Several pieces of Plastic Strainers used for draining out liquids
from finished Shabu;

374 | P a g e

e. One (1) Plastic Container with liquid chemical of undetermined

element;
f. Several pieces of Spoons and ladles with traces of raw Shabu
used in stirring mixtures
g. One (1) Electric Cooking Stove w/one coil burner;
h. One (1) Unit Card Making Machine;
i. One (1) Unit Card Stamping Machine;
j. Several pieces of Credit Cards and Telephone Cards;[94]
Anciro, Jr. placed his initials on the plastic bags containing white
crystalline powder which were found and confiscated at Atlantic
Drive and, in the company of Ferias, delivered the same to the PNP
Crime Laboratory for examination, per the request of Police
Superintendent Janice P. de Guzman, the chief of the PARAC.
We agree with the appellant that she was not one of the accused
named in the search warrants. However, such fact did not proscribe
the policemen from arresting her and charging her of violation of
Rep. Act No. 6425, as amended. There was, in fine, probable cause
for her warrantless arrest independent of that found by Judge
William Bayhon when he issued the search warrants against Lao
and Chan for search of the condominium units at Atlantic Drive and
Cityland.
Probable cause exists for the warrantless detention and arrest of
one at the premises being searched when the facts and
circumstances within their knowledge and of which they had
reliable and trustworthy information are sufficient to themselves
warrant a reasonable belief of a cautious person that an offense
has been or is being committed.[95] It has been held that:
Probable cause for the arrest of petitioner Diane Ker, while not
present at the time the officers entered the apartment to arrest her
husband, was nevertheless present at the time of her arrest. Upon
their entry and announcement of their identity, the officers were
met not only by George Ker but also by Diane Ker, who was
emerging from the kitchen. Officer Berman immediately walked to
the doorway from which she emerged and, without entering,
observed the brick-shaped package of marijuana in plain view. Even
assuming that her presence in a small room with the contraband in
a prominent position on the kitchen sink would not alone establish

PALISOC & SARMIENTO

a reasonable ground for the officers' belief that she was in joint
possession with her husband, that fact was accompanied by the
officers' information that Ker had been using his apartment as a
base of operations for his narcotics activities. Therefore, we cannot
say that at the time of her arrest there were no sufficient grounds
for a reasonable belief that Diane Ker, as well as her husband, were
committing the offense of possession of marijuana in the presence
of the officers.[96]
In Draper v. United States,[97] it was held that informations from a
reliable informant, corroborated by the police officer's observations
as to the accuracy of the description of the accused, and of his
presence at a particular place, is sufficient to establish probable
cause. In this case, the police officers received reliable information
and verified, after surveillance, that appellant Lee and Lao were
living together as husband and wife in the condominium unit and
that appellant Lee handled the accounting of the payments and
proceeds of the illegal drug trafficking activities of Lao. Indeed, the
policemen found that the appellant occupied the bedroom and
slept in the same bed used by Lao. The appellant took her clothes
from the same cabinet where the subject shabu and paraphernalia
were found by Anciro, Jr. The appellant had been living in the same
condominium unit with Lao since October 1, 1996 until her arrest
on October 25, 1996. Along with Lao, the appellant thus had joint
control and possession of the bedroom, as well as of the articles,
paraphernalia, and the shabu found therein. Such facts and
circumstances are sufficient on which to base a reasonable belief
that the appellant had joint possession of the regulated drugs found
in the bedroom along with Lao, her live-in partner, in line with our
ruling in People v. Tira.[98] For the purpose of prosecution for
violation of the Dangerous Drugs Law, possession can be
constructive and need not be exclusive, but may be joint.[99]
Admittedly, Anciro, Jr. seized and took custody of certain articles
belonging to the appellant and Lao which were not described in the
search warrants. However, the seizure of articles not listed in a
search warrant does not render the seizure of the articles described
and listed therein illegal; nor does it render inadmissible in
evidence such articles which were described in the warrant and
seized pursuant thereto. Moreover, it bears stressing that Anciro, Jr.
saw the unlisted articles when he and the other policemen
implemented the search warrants. Such articles were in plain view
of Anciro, Jr. as he implemented the search warrants and was
authorized to seize the said articles because of their close
connection to the crime charged. As held in Coolidge, Jr. v. New
Hampshire:[100]

375 | P a g e

An example of the applicability of the 'plain view' doctrine is the

situation in which the police have a warrant to search a given area
for specified objects, and in the course of the search come across
some other article of incriminating character. ...
Where the initial intrusion that brings the police within plain view of
such an article is supported, not by a warrant, but by one of the
recognized exceptions to the warrant requirement, the seizure is
also legitimate. Thus, the police may inadvertently come across
evidence while in 'hot pursuit' of a fleeing suspect. ... And an object
that comes into view during a search incident to arrest that is
appropriately limited in scope under existing law may be seized
without a warrant.... Finally, the 'plain view' doctrine has been
applied where a police officer is not searching for evidence against
the accused, but nonetheless inadvertently comes across an
incriminating
object.
...[101]

The Director of the Bureau of Corrections is hereby directed to

release the said appellant from detention unless he is detained for
another cause or charge, and to submit to the Court, within five (5)
days from notice hereof, a report of his compliance with the
directive
of
the
Court.
The appeal of appellant Jogy Lee is DENIED. The Decision dated
January 10, 1999, of the Regional Trial Court of Paraaque City,
convicting her of violation of Section 16, Rep. Act No. 6425 is
AFFIRMED.
No
costs.
SO ORDERED.

It cannot be denied that the cards, passbook, passport and other

documents and papers seen by the policemen have an intimate
nexus with the crime charged or, at the very least, incriminating.
The passport of the appellant would show when and how often she
had been in and out of the country. Her credit cards and bank book
would indicate how much money she had amassed while in the
country and how she acquired or earned the same. The pictures
and those of the other persons shown therein are relevant to show
her relationship to Lao and Chan.[102]
Contrary to the claim of the appellant, it is not true that the trial
court failed to provide an interpreter when she testified. The
records show that a Cantonese interpreter attended the trial and
interpreted her testimony. The Rules of Court does not require the
trial court to provide the appellant with an interpreter throughout
the trial. An interpreter is required only if the witness on the stand
testifies in a language other than in English or is a deaf- mute. The
appellant may procure the services of an interpreter at her own
expense.
Contrary to the claim of appellant Lee, the prosecution adduced
proof beyond reasonable doubt of her guilt of the crime charged.
She and Lao, her lover, had joint possession of the shabu which the
policemen
found
and
confiscated
from
her
bedroom.
IN LIGHT OF ALL THE FOREGOING, the appeal of appellant Huang
Zhen Hua is GRANTED. The Decision of the Regional Trial Court of
Paraaque City, convicting him of the crime charged, is REVERSED
AND SET ASIDE. The said appellant is ACQUITTED of said charge.

PALISOC & SARMIENTO

376 | P a g e

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF

CAPT. GARY ALEJANO, PN (MARINES) CAPT. NICANOR
FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT.
SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG
ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and
ROBERTO RAFAEL (ROEL) PULIDO, Petitioners, versus GEN.
PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES,
and SEC. ROILO GOLEZ, Respondents.
G.R. No. 160792 | 2005-08-25
EN BANC
DECISION
CARPIO, J.:
The Case
This petition for review[1] seeks to nullify the Decision[2] of the
Court of Appeals dated 17 September 2003 and Resolution dated
13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals'
Decision and Resolution dismissed the petition for habeas
corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido
("petitioners") on behalf of their detained clients Capt. Gary Alejano
(PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo
Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo
(PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees").
Petitioners named as respondent Gen. Pedro Cabuay ("Gen.
Cabuay"), Chief of the Intelligence Service of the Armed Forces of
the Philippines ("ISAFP"), who has custody of the detainees.
Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec.
Angelo Reyes and Roilo Golez, who are respectively the Chief of
Staff of the Armed Forces of the Philippines ("AFP"), Secretary of
National Defense and National Security Adviser, because they have
command responsibility over Gen. Cabuay.
Antecedent Facts
Early morning of 27 July 2003, some 321 armed soldiers, led by the
now detained junior officers, entered and took control of the
Oakwood Premier Luxury Apartments ("Oakwood"), an upscale
apartment complex, located in the business district of Makati City.
The soldiers disarmed the security officers of Oakwood and planted
explosive devices in its immediate surroundings. The junior officers
publicly renounced their support for the administration and called
for the resignation of President Gloria Macapagal-Arroyo and
several cabinet members.

PALISOC & SARMIENTO

Around 7:00 p.m. of the same date, the soldiers voluntarily

surrendered to the authorities after several negotiations with
government emissaries. The soldiers later defused the explosive
devices they had earlier planted. The soldiers then returned to their
barracks.
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP,
issued a directive to all the Major Service Commanders to turn over
custody of ten junior officers to the ISAFP Detention Center. The
transfer took place while military and civilian authorities were
investigating the soldiers' involvement in the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information
for coup d'etat with the Regional Trial Court of Makati City, Branch
61, against the soldiers involved in the 27 July 2003 Oakwood
incident. The government prosecutors accused the soldiers of coup
d'etat as defined and penalized under Article 134-A of the Revised
Penal Code of the Philippines, as amended. The case was docketed
as Criminal Case No. 03-2784. The trial court later issued the
Commitment Orders giving custody of junior officers Lt. SG Antonio
Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the
Commanding Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major
Service Commanders to take into custody the military personnel
under their command who took part in the Oakwood incident
except the detained junior officers who were to remain under the
custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas
corpus with the Supreme Court. On 12 August 2003, the Court
issued a Resolution, which resolved to:
(a) ISSUE the WRIT
OF
HABEAS
CORPUS;
(b)
require
respondents to make a RETURN of the writ on Monday, 18 August
2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case
to the Court of Appeals for RAFFLEamong the Justices thereof for
hearing, further proceedings and decision thereon, after which
a REPORT shall be made to this Court within ten (10) days from
promulgation of the decision.[3]
Thus, the Court issued a Writ of Habeas Corpus dated 12 August
2003 directing respondents to make a return of the writ and to
appear and produce the persons of the detainees before the Court
of Appeals on the scheduled date for hearing and further
proceedings.

377 | P a g e

On the same date, the detainees and their other co-accused filed
with the Regional Trial Court of Makati City a Motion for Preliminary
Investigation, which the trial court granted.
On 18 August 2003, pursuant to the directives of the Court,
respondents submitted their Return of the Writ and Answer to the
petition and produced the detainees before the Court of Appeals
during the scheduled hearing. After the parties filed their
memoranda on 28 August 2003, the appellate court considered the
petition submitted for decision.
On 17 September 2003, the Court of Appeals rendered its decision
dismissing the petition. Nonetheless, the appellate court ordered
Gen. Cabuay, who was in charge of implementing the regulations in
the ISAFP Detention Center, to uphold faithfully the rights of the
detainees in accordance with Standing Operations Procedure No.
0263-04. The appellate court directed Gen. Cabuay to adhere to his
commitment made in court regarding visiting hours and the
detainees' right to exercise for two hours a day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The
appellate court pointed out that the detainees are already charged
of coup d'etat before the Regional Trial Court of Makati. Habeas
corpus is unavailing in this case as the detainees' confinement is
under a valid indictment, the legality of which the detainees and
petitioners do not even question.
The Court of Appeals recognized that habeas corpus may also be
the appropriate remedy to assail the legality of detention if there is
a deprivation of a constitutional right. However, the appellate court
held that the constitutional rights alleged to have been violated in
this case do not directly affect the detainees' liberty. The appellate
court ruled that the regulation of the detainees' right to confer with
their counsels is reasonable under the circumstances.

hours a day. The dispositive portion of the appellate court's decision

reads:
WHEREFORE, the foregoing considered, the instant petition is
hereby DISMISSED. Respondent Cabuay is hereby ORDERED to
faithfully adhere to his commitment to uphold the constitutional
rights of the detainees in accordance with the Standing Operations
Procedure No. 0263-04 regarding visiting hours and the right of the
detainees to exercise for two (2) hours a day.
SO ORDERED.[4]
The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING
A DECISION OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF
THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS' DETENTION.
[5]
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Court's 12 August 2003 Order granted the
petition and the Court remanded the case to the Court of Appeals
only for a factual hearing. Petitioners thus argue that the Court's
Order had already foreclosed any question on the propriety and
merits of their petition.

The appellate court declared that while the opening and reading of
Trillanes' letter is an abhorrent violation of his right to privacy of
communication, this does not justify the issuance of a writ
of habeas corpus. The violation does not amount to illegal restraint,
which is the proper subject of habeas corpus proceedings.

Petitioners' claim is baseless. A plain reading of the 12 August 2003

Order shows that the Court referred to the Court of Appeals the
duty to inquire into the cause of the junior officers' detention. Had
the Court ruled for the detainees' release, the Court would not have
referred the hearing of the petition to the Court of Appeals. The
Court would have forthwith released the detainees had the Court
upheld petitioners' cause.

The Court of Appeals thus dismissed the petition and ordered Gen.
Cabuay to fulfill the promise he made in open court to uphold the
visiting hours and the right of the detainees to exercise for two

In a habeas corpus petition, the order to present an individual

before the court is a preliminary step in the hearing of the petition.
[6] The respondent must produce the person and explain the cause

PALISOC & SARMIENTO

378 | P a g e

of his detention.[7] However, this order is not a ruling on the

propriety of the remedy or on the substantive matters covered by
the remedy. Thus, the Court's order to the Court of Appeals to
conduct a factual hearing was not an affirmation of the propriety of
the remedy ofhabeas corpus.
For obvious reasons, the duty to hear the petition for habeas
corpus necessarily includes the determination of the propriety of
the remedy. If a court finds the alleged cause of the detention
unlawful, then it should issue the writ and release the detainees. In
the present case, after hearing the case, the Court of Appeals found
that habeas corpus is inapplicable. After actively participating in
the hearing before the Court of Appeals, petitioners are estopped
from claiming that the appellate court had no jurisdiction to inquire
into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas
corpus is not the proper remedy to address the detainees'
complaint against the regulations and conditions in the ISAFP
Detention Center. The remedy of habeas corpushas one objective:
to inquire into the cause of detention of a person.[8] The purpose of
the writ is to determine whether a person is being illegally deprived
of his liberty.[9] If the inquiry reveals that the detention is illegal,
the court orders the release of the person. If, however, the
detention is proven lawful, then the habeas corpus proceedings
terminate. The use of habeas corpus is thus very limited. It is not a
writ of error.[10] Neither can it substitute for an appeal.[11]
Nonetheless, case law has expanded the writ's application to
circumstances where there is deprivation of a person's
constitutional rights. The writ 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 also unnecessary, and
where a deprivation of freedom originally valid has later become
arbitrary.[12]
However, a mere allegation of a violation of one's constitutional
right is not sufficient. The courts will extend the scope of the writ
only if any of the following circumstances is present: (a) there is a
deprivation of a constitutional right resulting in the unlawful
restraint of a person; (b) the court had no jurisdiction to impose the
sentence; or (c) an excessive penalty is imposed and such sentence
is void as to the excess.[13] Whatever situation the petitioner
invokes, the threshold remains high. The violation of constitutional
right must be sufficient to void the entire proceedings.[14]

PALISOC & SARMIENTO

Petitioners admit that they do not question the legality of the

detention of the detainees. Neither do they dispute the lawful
indictment of the detainees for criminal and military offenses. What
petitioners bewail is the regulation adopted by Gen. Cabuay in the
ISAFP Detention Center preventing petitioners as lawyers from
seeing the detainees - their clients - any time of the day or night.
The regulation allegedly curtails the detainees' right to counsel and
violates Republic Act No. 7438 ("RA 7438").[15] Petitioners claim
that the regulated visits made it difficult for them to prepare for the
important hearings before the Senate and the Feliciano
Commission.
Petitioners also point out that the officials of the ISAFP Detention
Center violated the detainees' right to privacy of communication
when the ISAFP officials opened and read the personal letters of
Trillanes and Capt. Milo Maestrecampo ("Maestrecampo").
Petitioners further claim that the ISAFP officials violated the
detainees' right against cruel and unusual punishment when the
ISAFP officials prevented the detainees from having contact with
their visitors. Moreover, the ISAFP officials boarded up with iron
bars and plywood slabs the iron grills of the detention cells, limiting
the already poor light and ventilation in the detainees' cells.
Pre-trial detainees do not forfeit their constitutional rights upon
confinement.[16] However, the fact that the detainees are confined
makes their rights more limited than those of the public.[17] RA
7438, which specifies the rights of detainees and the duties of
detention officers, expressly recognizes the power of the detention
officer to adopt and implement reasonable measures to secure the
safety of the detainee and prevent his escape. Section 4(b) of RA
7438 provides:
Section 4. Penalty Clause. - a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any
member of the immediate family of a person arrested, detained or
under custodial investigation, or any medical doctor or priest or
religious minister or by his counsel, from visiting and conferring
privately chosen by him or by any member of his immediate family
with him, or from examining and treating him, or from ministering
to his spiritual needs, at any hour of the day or, in urgent
cases, of the night shall suffer the penalty of imprisonment of not
less than four (4) years nor more than six (6) years, and a fine of
four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security
officer with custodial responsibility over any detainee or prisoner

379 | P a g e

may undertake such reasonable measures as may be

necessary to secure his safety and prevent his
escape. (Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a
lawyer from visiting a detainee client "at any hour of the day or, in
urgent cases, of the night." However, the last paragraph of the
same
Section
4(b)
makes
the
express
qualification
that "notwithstanding" the provisions of Section 4(b), the
detention officer has the power to undertake such reasonable
measures as may be necessary to secure the safety of the detainee
and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear
standard. The regulations governing a detainee's confinement must
be "reasonable measures x x x to secure his safety and prevent his
escape." Thus, the regulations must be reasonably connected to
the government's objective of securing the safety and preventing
the escape of the detainee. The law grants the detention officer the
authority to "undertake such reasonable measures" or regulations.
Petitioners contend that there was an actual prohibition of the
detainees' right to effective representation when petitioners' visits
were limited by the schedule of visiting hours. Petitioners assert
that the violation of the detainees' rights entitle them to be
released from detention.
Petitioners' contention does not persuade us. The schedule of
visiting hours does not render void the detainees' indictment for
criminal and military offenses to warrant the detainees' release
from detention. The ISAFP officials did not deny, but merely
regulated, the detainees' right to counsel. The purpose of the
regulation is not to render ineffective the right to counsel, but to
secure the safety and security of all detainees. American cases are
instructive on the standards to determine whether regulations on
pre-trial confinement are permissible.
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held
that regulations must be reasonably related to maintaining security
and must not be excessive in achieving that purpose. Courts will
strike down a restriction that is arbitrary and purposeless.[19]
However, Bell v. Wolfish expressly discouraged courts from
skeptically questioning challenged restrictions in detention and
prison facilities.[20] The U.S. Supreme Court commanded the
courts to afford administrators "wide-ranging deference" in
implementing policies to maintain institutional security.[21]

PALISOC & SARMIENTO

In our jurisdiction, the last paragraph of Section 4(b) of RA 7438

provides the standard to make regulations in detention centers
allowable: "such reasonable measures as may be necessary
to secure the detainee's safety and prevent his escape." In
the present case, the visiting hours accorded to the lawyers of the
detainees are reasonably connected to the legitimate purpose of
securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want,
the fact that the detainees still have face-to-face meetings with
their lawyers on a daily basis clearly shows that there is no
impairment of detainees' right to counsel. Petitioners as counsels
could visit their clients between 8:00 a.m. and 5:00 p.m. with a
lunch break at 12:00 p.m. The visiting hours are regular business
hours, the same hours when lawyers normally entertain clients in
their law offices. Clearly, the visiting hours pass the standard of
reasonableness. Moreover, in urgent cases, petitioners could
always seek permission from the ISAFP officials to confer with their
clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the
detainees, giving petitioners sufficient time to confer with the
detainees. The detainees' right to counsel is not undermined by the
scheduled visits. Even in the hearings before the Senate and the
Feliciano Commission,[22] petitioners were given time to confer
with the detainees, a fact that petitioners themselves admit.[23]
Thus, at no point were the detainees denied their right to counsel.
Petitioners further argue that the bars separating the detainees
from their visitors and the boarding of the iron grills in their cells
with plywood amount to unusual and excessive punishment. This
argument fails to impress us. Bell v. Wolfishpointed out that while
a detainee may not be punished prior to an adjudication of guilt in
accordance with due process of law, detention inevitably interferes
with a detainee's desire to live comfortably.[24] The fact that the
restrictions inherent in detention intrude into the detainees' desire
to live comfortably does not convert those restrictions into
punishment.[25] It is when the restrictions are arbitrary and
purposeless that courts will infer intent to punish.[26] Courts will
also infer intent to punish even if the restriction seems to be
related rationally to the alternative purpose if the restriction
appears excessive in relation to that purpose.[27] Jail officials are
thus not required to use the least restrictive security measure.[28]
They must only refrain from implementing a restriction that
appears excessive to the purpose it serves.[29]
We quote Bell v. Wolfish:

380 | P a g e

One further point requires discussion. The petitioners assert, and

respondents concede, that the "essential objective of pretrial
confinement is to insure the detainees' presence at trial." While this
interest undoubtedly justifies the original decision to confine an
individual in some manner, we do not accept respondents'
argument that the Government's interest in ensuring a detainee's
presence at trial is the only objective that may justify restraints and
conditions once the decision is lawfully made to confine a person.
"If the government could confine or otherwise infringe the liberty of
detainees only to the extent necessary to ensure their presence at
trial, house arrest would in the end be the only constitutionally
justified form of detention." The Government also has legitimate
interests that stem from its need to manage the facility in which
the individual is detained. These legitimate operational concerns
may require administrative measures that go beyond those that
are, strictly speaking, necessary to ensure that the detainee shows
up at trial. For example, the Government must be able to take steps
to maintain security and order at the institution and make certain
no weapons or illicit drugs reach detainees. Restraints that are
reasonably related to the institution's interest in maintaining jail
security do not, without more, constitute unconstitutional
punishment, even if they are discomforting and are restrictions that
the detainee would not have experienced had he been released
while awaiting trial. We need not here attempt to detail the precise
extent of the legitimate governmental interests that may justify
conditions or restrictions of pretrial detention. It is enough simply to
recognize that in addition to ensuring the detainees' presence at
trial, the effective management of the detention facility once the
individual is confined is a valid objective that may justify imposition
of conditions and restrictions of pretrial detention and dispel any
inference that such restrictions are intended as punishment.[30]
An action constitutes a punishment when (1) that action causes the
inmate to suffer some harm or "disability," and (2) the purpose of
the action is to punish the inmate.[31] Punishment also requires
that the harm or disability be significantly greater than, or be
independent of, the inherent discomforts of confinement.[32]
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld
the blanket restriction on contact visits as this practice was
reasonably related to maintaining security. The safety of innocent
individuals will be jeopardized if they are exposed to detainees who
while not yet convicted are awaiting trial for serious, violent
offenses and may have prior criminal conviction.[34] Contact visits
make it possible for the detainees to hold visitors and jail staff
hostage to effect escapes.[35] Contact visits also leave the jail

PALISOC & SARMIENTO

vulnerable to visitors smuggling in weapons, drugs, and other

contraband.[36] The restriction on contact visits was imposed even
on low-risk detainees as they could also potentially be enlisted to
help obtain contraband and weapons.[37] The security
consideration in the imposition of blanket restriction on contact
visits was ruled to outweigh the sentiments of the detainees.[38]
Block v. Rutherford held that the prohibition of contact visits bore
a rational connection to the legitimate goal of internal security.[39]
This case reaffirmed the "hands-off" doctrine enunciated in Bell v.
Wolfish, a form of judicial self-restraint, based on the premise that
courts should decline jurisdiction over prison matters in deference
to administrative expertise.[40]
In the present case, we cannot infer punishment from the
separation of the detainees from their visitors by iron bars, which is
merely a limitation on contact visits. The iron bars separating the
detainees from their visitors prevent direct physical contact but still
allow the detainees to have visual, verbal, non-verbal and limited
physical contact with their visitors. The arrangement is not unduly
restrictive. In fact, it is not even a strict non-contact visitation
regulation like inBlock v. Rutherford. The limitation on the
detainees' physical contacts with visitors is a reasonable, nonpunitive response to valid security concerns.
The boarding of the iron grills is for the furtherance of security
within the ISAFP Detention Center. This measure intends to fortify
the individual cells and to prevent the detainees from passing on
contraband and weapons from one cell to another. The boarded
grills ensure security and prevent disorder and crime within the
facility. The diminished illumination and ventilation are but
discomforts inherent in the fact of detention, and do not constitute
punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the
conditions in the ISAFP Detention Center are not inhuman,
degrading and cruel. Each detainee, except for Capt. Nicanor
Faeldon and Capt. Gerardo Gambala, is confined in separate cells,
unlike ordinary cramped detention cells. The detainees are treated
well and given regular meals. The Court of Appeals noted that the
cells are relatively clean and livable compared to the conditions
now prevailing in the city and provincial jails, which are congested
with detainees. The Court of Appeals found the assailed measures
to be reasonable considering that the ISAFP Detention Center is a
high-risk detention facility. Apart from the soldiers, a suspected
New People's Army ("NPA") member and two suspected Abu Sayyaf
members are detained in the ISAFP Detention Center.

381 | P a g e

We now pass upon petitioners' argument that the officials of the

ISAFP Detention Center violated the detainees' right to privacy
when the ISAFP officials opened and read the letters handed by
detainees Trillanes and Maestrecampo to one of the petitioners for
mailing. Petitioners point out that the letters were not in a sealed
envelope but simply folded because there were no envelopes in the
ISAFP Detention Center. Petitioners contend that the Constitution
prohibits the infringement of a citizen's privacy rights unless
authorized by law. The Solicitor General does not deny that the
ISAFP officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open
and read all incoming and outgoing mail of convicted prisoners to
prevent the smuggling of contraband into the prison facility and to
avert coordinated escapes.[41] Even in the absence of statutes
specifically allowing prison authorities from opening and inspecting
mail, such practice was upheld based on the principle of "civil
deaths."[42] Inmates were deemed to have no right to correspond
confidentially with anyone. The only restriction placed upon prison
authorities was that the right of inspection should not be used to
delay unreasonably the communications between the inmate and
his lawyer.[43]
Eventually, the inmates' outgoing mail to licensed attorneys,
courts, and court officials received respect.[44] The confidential
correspondences could not be censored.[45] The infringement of
such privileged communication was held to be a violation of the
inmates' First Amendment rights.[46] A prisoner has a right to
consult with his attorney in absolute privacy, which right is not
abrogated by the legitimate interests of prison authorities in the
administration of the institution.[47] Moreover, the risk is small that
attorneys will conspire in plots that threaten prison security.[48]
American jurisprudence initially made a distinction between the
privacy rights enjoyed by convicted inmates and pre-trial
detainees. The case of Palmigiano v. Travisono[49] recognized
that pre-trial detainees, unlike convicted prisoners, enjoy a limited
right of privacy in communication. Censorship of pre-trial detainees'
mail addressed to public officials, courts and counsel was held
impermissible. While incoming mail may be inspected for
contraband and read in certain instances, outgoing mail of pre-trial
detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,[50] involving
convicted prisoners, the U.S. Supreme Court held that prison
officials could open in the presence of the inmates incoming mail

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from attorneys to inmates. However, prison officials could not read

such mail from attorneys. Explained the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and
inspect incoming mail from attorneys to inmates, has been
considerably narrowed in the course of this litigation. The prison
regulation under challenge provided that '(a)ll incoming and
outgoing mail will be read and inspected,' and no exception was
made for attorney-prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from
attorneys to inmates, but contend that they may open all letters
from attorneys as long as it is done in the presence of the
prisoners. The narrow issue thus presented is whether letters
determined or found to be from attorneys may be opened by prison
authorities in the presence of the inmate or whether such mail
must be delivered unopened if normal detection techniques fail to
indicate contraband.
xxx
x x x If prison officials had to check in each case whether a
communication was from an attorney before opening it for
inspection, a near impossible task of administration would be
imposed. We think it entirely appropriate that the State require any
such communications to be specially marked as originating from an
attorney, with his name and address being given, if they are to
receive special treatment. It would also certainly be permissible
that prison authorities require that a lawyer desiring to correspond
with a prisoner, first identify himself and his client to the prison
officials, to assure that the letters marked privileged are actually
from members of the bar. As to the ability to open the mail in the
presence of inmates, this could in no way constitute censorship,
since the mail would not be read. Neither could it chill such
communications, since the inmate's presence insures that prison
officials will not read the mail. The possibility that contraband will
be enclosed in letters, even those from apparent attorneys, surely
warrants prison officials' opening the letters. We disagree with the
Court of Appeals that this should only be done in 'appropriate
circumstances.' Since a flexible test, besides being unworkable,
serves no arguable purpose in protecting any of the possible
constitutional rights enumerated by respondent, we think that
petitioners, by acceding to a rule whereby the inmate is present
when mail from attorneys is inspected, have done all, and perhaps
even more, than the Constitution requires.[51]

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In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an

inmate has no reasonable expectation of privacy inside his cell. The
U.S. Supreme Court explained that prisoners necessarily lose many
protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many
protections of the Constitution, it is also clear that imprisonment
carries with it the circumscription or loss of many significant rights.
These constraints on inmates, and in some cases the complete
withdrawal of certain rights, are "justified by the considerations
underlying our penal system." The curtailment of certain rights is
necessary, as a practical matter, to accommodate a myriad of
"institutional needs and objectives" of prison facilities, chief among
which is internal security. Of course, these restrictions or retractions
also serve, incidentally, as reminders that, under our system of
justice, deterrence and retribution are factors in addition to
correction.[53]
The later case of State v. Dunn,[54] citing Hudson v. Palmer,
abandoned Palmigiano v. Travisono and made no distinction as
to the detainees' limited right to privacy. State v. Dunn noted the
considerable jurisprudence in the United States holding that inmate
mail may be censored for the furtherance of a substantial
government interest such as security or discipline. State v.
Dunn declared that if complete censorship is permissible, then the
lesser act of opening the mail and reading it is also permissible. We
quote State v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is
fundamentally incompatible with the close and continual
surveillance of inmates and their cells required to ensure
institutional security and internal order. We are satisfied that
society would insist that the prisoner's expectation of privacy
always yield to what must be considered a paramount interest in
institutional security. We believe that it is accepted by our society
that "[l]oss of freedom of choice and privacy are inherent incidents
of confinement."
The distinction between the limited privacy rights of a pre-trial
detainee and a convicted inmate has been blurred as courts in the
U.S. ruled that pre-trial detainees might occasionally pose an even
greater
security
risk
than
convicted
inmates. Bell
v.
Wolfish reasoned that those who are detained prior to trial may in
many cases be individuals who are charged with serious crimes or
who have prior records and may therefore pose a greater risk of
escape than convicted inmates.[55] Valencia v. Wiggins[56]
further held that "it is impractical to draw a line between convicted

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prisoners and pre-trial detainees for the purpose of maintaining jail

security."
American cases recognize that the unmonitored use of pre-trial
detainees' non-privileged mail poses a genuine threat to jail
security.[57] Hence, when a detainee places his letter in an
envelope for non-privileged mail, the detainee knowingly exposes
his letter to possible inspection by jail officials.[58] A pre-trial
detainee has no reasonable expectation of privacy for his incoming
mail.[59] However, incoming mail from lawyers of inmates enjoys
limited protection such that prison officials can open and inspect
the mail for contraband but could not read the contents without
violating the inmates' right to correspond with his lawyer.[60] The
inspection of privileged mail is limited to physical contraband and
not to verbal contraband.[61]
Thus, we do not agree with the Court of Appeals that the opening
and reading of the detainees' letters in the present case violated
the detainees' right to privacy of communication. The letters were
not in a sealed envelope. The inspection of the folded letters is a
valid measure as it serves the same purpose as the opening of
sealed letters for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were
not confidential letters between the detainees and their lawyers.
The petitioner who received the letters from detainees Trillanes and
Maestrecampo was merely acting as the detainees' personal
courier and not as their counsel when he received the letters for
mailing. In the present case, since the letters were not
confidential communication between the detainees and
their lawyers, the officials of the ISAFP Detention Center
could read the letters. If the letters are marked confidential
communication between the detainees and their lawyers, the
detention officials should not read the letters but only open the
envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a
citizen's privacy rights[62] is a guarantee that is available only to
the public at large but not to persons who are detained or
imprisoned. The right to privacy of those detained is subject to
Section 4 of RA 7438, as well as to the limitations inherent in lawful
detention or imprisonment. By the very fact of their detention, pretrial detainees and convicted prisoners have a diminished
expectation of privacy rights.
In assessing the regulations imposed in detention and prison
facilities that are alleged to infringe on the constitutional rights of

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the detainees and convicted prisoners, U.S. courts "balance the

guarantees of the Constitution with the legitimate concerns of
prison administrators."[63] The deferential review of such
regulations stems from the principle that:
[s]ubjecting the day-to-day judgments of prison officials to an
inflexible strict scrutiny analysis would seriously hamper their
ability to anticipate security problems and to adopt innovative
solutions to the intractable problems of prison administration.[64]
The detainees in the present case are junior officers accused of
leading 300 soldiers in committing coup d'etat, a crime punishable
with reclusion perpetua.[65] The junior officers are not ordinary
detainees but visible leaders of the Oakwood incident involving an
armed takeover of a civilian building in the heart of the financial
district of the country. As members of the military armed forces, the
detainees are subject to the Articles of War.[66]
Moreover, the junior officers are detained with other high-risk
persons from the Abu Sayyaf and the NPA. Thus, we must give the
military custodian a wider range of deference in implementing the
regulations in the ISAFP Detention Center. The military custodian is
in a better position to know the security risks involved in detaining
the junior officers, together with the suspected Abu Sayyaf and NPA
members. Since the appropriate regulations depend largely on the
security risks involved, we should defer to the regulations adopted
by the military custodian in the absence of patent arbitrariness.
The ruling in this case, however, does not foreclose the right of
detainees and convicted prisoners from petitioning the courts for
the redress of grievances. Regulations and conditions in detention
and prison facilities that violate the Constitutional rights of the
detainees and prisoners will be reviewed by the courts on a caseby-case basis. The courts could afford injunctive relief or damages
to the detainees and prisoners subjected to arbitrary and inhumane
conditions. However, habeas corpus is not the proper mode to
question conditions of confinement.[67] The writ of habeas
corpuswill only lie if what is challenged is the fact or duration of
confinement.[68]
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision
of the Court of Appeals in CA-G.R. SP No. 78545.
No pronouncement as to costs.
SO ORDERED.

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