1

[GR No. L-824, January 14, 1948]

ROAD HILARIO MONCADO, RECURRENT COURT AGAINST THE PEOPLE AND JOHN M. LADAW,
AS ATTORNEY SPECIAL, APPEALED. DECISION
PAUL, J.:
In an original application for certiorari . the appellant, accused of treason in the criminal case No. 3522 of
the People's Court, alleges that in April 4, 1945 at about 6 pm, he was arrested by members of the Army
CIC U.S. at his home in San Rafael Street, No. 199-A, Manila, without a warrant and was taken to prisons
in Muntinglupa, Rizal, a week after his wife, who had moved to his residence in the house Rosario Street,
No. 3, Quezon City, was invited by several members of the ICC under the command of Lieutenant Olves
to witness the search of his house on Calle San Rafael, who refused to follow them because they had a
search warrant, but as assured that even without his presence had to do anyway check, she
accompanied them, that on arrival at the house, he saw that several effects were strewn on the ground
including several documents, that Lieutenant Olves informed her that was carrying some documents to
prove the guilt of her husband, that the June 27, 1946 the appellant filed a motion with the People's Court
asking the return of such documents alleging as a reason that has been obtained from his residence
without a search warrant, and that court, with grave abuse of discretion or excess of jurisdiction and
following the doctrine established in the case of Alveroagainst Dizon (76 Phil., 637) rejected it, that unless
this Court order the special prosecutor that appellant returned to , his constitutional rights guaranteed by
the Constitution would be violated. And because it has no other choice simple, rapid and appropriate in
the ordinary course of law, requests that this Court ( a ) set aside the order of the People's Court of 9 July
1946, ( b ) that the Court is required to order the return of such documents to the plaintiff, ( c ) the
issuance of a restraining order prohibiting the Special Prosecutor to present them as evidence against the
appellant in the case of treason. These requests show that the documents are relevant evidence, plus
admissible because there is no rule that prevents (Model Code of Evidence, 87).
This well established appellant's contention that the decision in the case of Alvero against Dizon 76 Phil.,
637) is not applicable to the particular case. Documents in the case of Alvero have been seized by
members of the CIC when the military government exercised in full swing its occupation army
functions. Instead, when they took on April 11, 1945, documents that are the subject of this case, General
MacArthur on behalf of the Government of the United States, and had re-established in February 27 of
that year, the Commonwealth with all its powers and prerogatives (41 Off. Gaz. 86). The Commonwealth
government was already exerting all his powers and legal eonstitucionales without Iimitacin some in the
City of Manila. President Ho talks suspended constitutional guarantees.
Doctrine is well established in the Philippines, United States, England and Canada that the admissibility
of evidence is not affected by the illegality of the means of the party has used to obtain them.

[1]

is

followed by many years doctrine "until arose - this Court said in Pueblo against Carlos, 47 Phil., 660 - the
fatal majority opinion in the case of Boyd vs . U.S. in 1885, which has had pernicious influence in many
states on subsequent judicial opinions. "

"The development of this doctrine of the case of Boyd vs . U.S. was as follows. ( a) The case of Boyd
continued without putting into question in the same court for twenty years, and meanwhile received
frequent disapproval of state courts ( atparagraph 2183). ( b ) Then in case of Adams vs. . New York, in
1904, was implicitly rejected . in the Federal Supreme Court, and the registered Orthodox precedents in
the courts of the State ( at paragraph 2I83) were expressly approved. ( c ) Then, after another twenty
years, in 1914, in the cause of Weeksvs . U.S., the Federal Supreme Court moved at this time not by
history wrong, but by a misplaced sentimentality - back to the original doctrine the cause of Boyd, but
with a condition . namely that the illegality of the search and seizure should first have been directly
litigated and established by a motion made before trial, for the return of things seized, so that, after the
motion and only then, could illegality noted in the main trial and the evidence so obtained should be
excluded. ***. "Under the authority of the Weeks doctrine vs . U.S., and other decisions of the same
school the appellant exercised this action, requesting the return of the documents illegally removed by
ICC members.
We concur with the appellant's complaint that under these constitutional guarantees, had the right to be
respected home, your documents should not be seized by any authority or agent of authority, without a
search warrant duly issued.
These constitutional limitations, however, not go so far as to exclude relevant evidence documents
obtained illegally or improperly E1. The Court Rules, Rule 123, determines what evidence should be
excluded, which is not admissible and competent and incompetent classified as the illegally obtained
evidence. The fundamental law sets the limits far can the executive, legislative and judiciary in the
performance of their duties. The executive should not abuse their power, violating the citizen's home or
improperly seizing their goods and documents, the legislature should not pass laws which frustrate the
sacred home and courts should punish violators of the Constitution, without of whether they are public
servants or not.As President Lumpkin Williams vs . State, 28 SE, 624:
"As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against
unreasonable searches and seizures, was to place a restriction upon the salutary powers of
government.That is to say, we believe the framers of the Constitutions of the United States and of this
and other states Merely Sought to Provide against any attempt, by legislation or Otherwise, to authorize,
justify, or declare lawful, any unreasonable search or seizure. wise This was Intended to Operate
restriction upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the
people Expressly stipulated in no event Could be made lawful; upon executives, so That law not violative
of this constitutional inhibition Should ever be enforced, and upon the judiciary, so as to render it the duty
of the courts to denounce as unlawful search and seizure every unreasonable, without any color Whether
confessedly of authority, or Sought to be Justified under the guise of legislative sanction. For the
misconduct of private persons, acting upon Their Individual Responsibility and of Their Own volition,
surely none of the three divisions of government is responsible. If an official, or a mere agent of the state
petty, exceeds or abuses the authority with Which he is clothed, he is to be Deemed as acting, not for the

state, but for himself only, and THEREFORE I alone, and not the state, held accountable Should be for
his acts. If the constitutional rights of a citizen are invaded by a mere individual, The Most That any
branch of government can do is to AFFORD the Such citizen redress as is possible, and bring the
wrongdoer to account for his unlawful conduct. ***. "
We believe that the framers Filipino nan never had the slightest idea of granting criminal immunity to
violating the sanctity of the home, or any lawbreaker criminal for the mere fact that the evidence against
him have been obtained illegally. The procedure healthy, fair and orderly is to be punished according to
Article 128 of the Revised Penal Code to the individual who, under the guise of public officer without a
search warrant, unduly profane a ciudano home and seized his papers and also to punish that citizen is
guilty of a crime, regardless of whether the evidence of his guilt was obtained illegally. The medium used
in the acquisition of the document does not alter its probative value. Thus in Stevison vs. Earnest, 80,
111. 5L3, said, "It is Contemplated, and such ought ever to be the fact, That the records of Courts
REMAIN permanently in the places Assigned by the law for Their custody. It does not logically follow,
However, That the records, being Obtained, can not be used as instruments of evidence, for the mere
fact of (illegally) does not change them Obtaining That Which is written in them ***. Suppose the
Presence of a witness to Have Been procured by fraud or violence, while the THUS party procuring the
attendance of the witness would be liable to severe punishment, surely That Could not be urged us
against the competency of the witness. If I Could not, why Marshall to record, although illegally taken from
its proper place of custody and Brought before the Court, but otherwise free from suspicion, be held
incompetent? "
In Com. vs. . Dana, 2 METC., 329, the Court said: "Admitting That the lottery tickets and matetials Were
Seized illegally, this is still no legal objection to the admission in evidence of them. Were If the search
warrant illegal, or if the officer serving the warrant exceeded his authority, the party on the warrant issued
Whose complaint, or the officer, would be responsible for the wrong done. But this is no good reason for
excluding the papers Seized, as evidence, if They Were pertinent to the issue, As They unquestionably
were. Offered When papers are in evidence the Court can not take notice how They Were Obtained, lawfully or unlawfully Whether, - nor would form a collateral issue They determined to question That. "
The appellant cites the case of Burdeau vs . McDowell as follows:
"Certain books, papers, memoranda, etc.., Private property McDowell were stolen by certain people who
were interested in research that would practice the Grand Jury against McDowell for some offense which
said it had made on the use fraudulent email. Such documents and books were delivered to Burdeau
after by the people who had been robbed. Burdeau was the special assistant to the Attorney-General of
the United States, which would have the direction and control of the prosecution before the Grand Jury .
McDowell Burdeau tried to prevent such books and documents used by a motion was filed in this regard.
Burdeau opposed the motion, arguing that he was entitled to use these papers. The Supreme Court of
the United States upheld the contention Burdeau , saying;

"'We knew of no constitutional principle Which Requires the government to surrender the papers under
Such circumstances.
"'The papers having eaten into possession of the government without a violation of petitioner's rights by
Governmental authority, we see no reason why the fact That Individuals unconnected With The
Government May have wrongfully taken them, Should Prevent them from being held for use in
prosecuting an offense where the documents are of incriminatory character. ' (Burdeau vs . McDowell.)
"Adopt our Supreme Court doctrine is announced in this decision? Submit that this is a bad rule of law,
and our humble opinion, should not adopt our court."
The recurring appointment after some decisions of state supreme courts nan not adopted this doctrine of
Federal Supreme Court. No wonder. Each court adopts its own discretion. But of the 45 States of the
American Union - by Judge Cardozo in his decision rendered in 1926, in People vs. . Defore, 150 NE, 585
- fourteen adopted heterodox doctrine Weeks and 31 rejected, and as Wigmore, in 1940, fourteen years
later, six more states, 37 in all, including Hawaii and Puerto Rico rejected, maintaining orthodox doctrine
. (8 Wigmore on Evidence, 3. Ed, p. 5-11) and after considering the various decisions of the two schools,
Cardozo made these pertinent observations on the doctrine of Weeks:
"We are confirmed CONCLUSION In This When We Reflect how far-reaching in its effect upon the new
society would be Consequences. The pettiest peace officer would Have It in his power, through overzeal
or indiscretion, to confer immunity upon an offender for crimes the MOST flagitious. A room is searched
against the law, and the body of a murdered man is found. If the place of discovery may not be PROVED,
The Other Circumstances may be Insufficient to connect the defendant With The crime. The privacy of the
home has been infringed, and the murderer goes free. Another search, Once More Against the Law,
discloses counterfeit money or the implements of forgery. The Absence of a warrant means the freedom
of the forger. Multiplied Like instances can be. "
Concretmonos to this case. If documents whose return calls the appellant prove his guilt of the crime of
treason, why the state has to return and save him from the accusation? Is not this consent and validate
the crime? Do not constitute judicial approval of the commission of two crimes, the violation of the
defendant's domicile committed by members of the CIC and the treason committed by the
appellant? Such a practice would encourage crime rather than prevent its commission. Moreover,
obtaining documents not alter its probative value. If he had mediated a search warrant, the documents
would be admissible evidence. There is no constitutional, legal or release the accused from criminal
liability because there was no warrant. Vigilante justice requires that criminal offenders are punished. The
release of the blame for the simple fact that the evidence against E1 has not been legally obtenlda is
judicially punish crime.
Consider a case: John who witnesses a murder, the murderer gets snatch the knife, and with which
orders him arrested and not give you to the presidency of the people. Along the way he meets Peter who
intercedes for the murderer, John, for sentimentality misunderstood returns the dagger and helps the
accused to remove all traces of the crime to avoid being caught. John and Peter, not only commit acts

unworthy of good citizenship, but must be punished for abetting (Art. 19, Cod. Pen. Rev.). The public will
never understand why these two individuals should be punished and instead, a court, under the doctrine
of Weeks, may order the return of the stolen document proving the guilt of the accused and to free this
and that stole the document.
Another case. For his suspicious catadura, one Jose is arrested by two police officers to go to the rostrum
where are gathered senior officials of the executive, legislative and judicial Along with diplomatic
representatives of friendly nations to witness stop independence anniversary and in his pocket found a
pump that is capable of flying across the platform. Two other policemen, after learning of the arrest,
confiscate the house of Joseph and found documents showing that he has received orders from a foreign
organization for all of the top polverizar government personel at the first opportunity. The police have no
warrant, no search warrant. Is it fair that a motion in the criminal Jos followed against him, is ordered by
the court the return of the documents that prove his crime? Did not give such encouragement to
anarchism in practice? The court would play the sad role of helping those who wish to undermine the
foundations of our institutions. In U.S. vs . Snyder, 278 Fed, 650, the Court said: "To hold that no criminal
can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant,
would be to leave society, to a large Extent , at the mercy of the shrewdest, The Most expert, and the
MOST depraved of criminals, Facilitating Their escape in many instances. " And in People vs . Mayen,
205 Pac., 435 stated: "Upon what theory can it be held That Such proceeding (for the return of the
articles) is an incident of the trial, in Such a Sense That the ruling thereon goes up on appeal as part of
the record and subject to review by the appellate court? Rather It seems to us an independent civil
proceeding to enforce a right in no way Involved in the criminal case. The right of the defendant is not to
exclude the incriminating documents from evidence, but to recover the possession of articles Which Were
wrongfully taken from him. Entirely That right exists apart from any Proposed use of the property by the
State or its agents. *** The fallacy of the doctrine contended for by appellant is in Assuming That the
constitutional rights of the defendant are Violated by using his private papers as evidence against him,
Whereas it was the invasion of his premises and the taking of his goods That constituted the offense
irrespective of what was taken or what use was made of it, and the law having Declared That the articles
taken are Competent and admissible evidence, notwithstanding the unlawful search and seizure, how can
the circumstance That the court erred in an independent proceeding for the return of the property on
defendant's demand add anything to or detract from the violation of the defendant's constitutional rights in
the unlawful search and seizure?
"The Constitution and the laws of the land are not solicitous to aid persons charged with crime in Their
Efforts to conceal or sequester evidence of Their iniquity." (8 Wig., 37)
Weeks theory vs . U.S. that subverts the rules of evidence is not acceptable in this jurisdiction, is contrary
to the sense of justice and the orderly and sound administration of justice. The orthodox doctrine imposed
by consistency proven through many years. Do not leave if you want that constitutional rights are
respected and not desecrated. The culprits should get their condign punishment, but the evidence against

them have been obtained illegally.

[2]

and those in breach of the law and the Constitution

improperly seize such evidence should also be punished. This is how the law prevails, majestic and
unscathed.
Rejecting the application with costs.
Moran,

[1]

CJ,

Fair,

and

Padilla

MM. ,

concur. Tuazon

J. ,

concur

in

the

result.

See the decisions of England, Canada, the States of Alabama, Arkansas, California, Connecticut,

Georgia, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North
Carolina, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Washington, West Virginia, Wyoming, Hawaii and Puerto Rico cited by the author in 8 Wigmore on
Evidence, 3. Ed, pages. 5-11. The Constitution guarantees the inviolability of individual rights in the
following terms "seviolar not the right people to be secure in their persons, dwellings, papers and effects
against unreasonable searches and kidnappings, nor be issued search warrants or arrest, unless
probable cause to be determined by the judge after examination under oath or affirmation, the
complainant and the witnesses that arises, and detailed description of the site that is to be recorded and
the persons or nan to grasp things that have to be seized. " (Title III, Article 1., Paragraph 3.
.)

[2]

Barton againstLeyte

Asphalt

&

Mineral

Oil

Co.,

46

Phil.,

973.

CONCURRING
YARN, J. :
I concur, but I would support the CONCLUSION Further arrived at by the Following additional
considerations:
In April, 1945, When the CIC Detachment of the United States Army made the search at petitioner's
house and effected the seizure of his papers and effects Mentioned in the Majority decision, as is of
general knowledge and Within the legal notice of this Court, fighting continued in Luzon, in fact, as late as
June, 1945, the cannonades and shellings Could Still Be Heard Clearly in this City of Manila, and There
Were Still units of the Japanese Army resisting the liberation forces. Under Such Circumstances,
Continuing the war was not only technically but actually in the island of Luzon, and the military security
and safety of the liberation forces Demanded Measures Such as Were ADOPTED by the CIC

Detachment of the United States Army in making said search and effecting said seizure to the end That
the Activities of pro-Japanese elements and Their chances of Effectively aiding the Japanese forces still
continued THUS Which Might Be Brought to resist down to a minimum and, if possible, entirely foiled. The
Difference between this case and the case in L-342, Alvero vs . Dizon, 43 Off. Gaz., 429), is, to my mind,
one

of

degree-Merely

the

principle

Involved

in

Both

cases

is

identical.

Dissenting
PERFECT, J. :
Accused of treason Petitioner stands before the People's Court, the information having been filed against
him by Prosecutor John M. Ladaw on February 28, 1946.
Almost a year before, on April 4, 1945, at about 6, 00 pm, petitioner was arrested by members of the
Counter Intelligence Corps of the United States army at his residence at 199-A San Rafael St., Manila,
without any warrant of arrest, and taken to the Bilibid Prison at Muntinglupa, Where He Was Detained.
On April 11, 1945, petitioner's wife, who Transferred to Their house at 3 Rosario Drive, Quezon City, was
Approached by several CIC officers, headed by Lt. Olves, and ordered to Accompany them to the house
at San Rafael to witness the taking of documents and things Belonging to petitioner. Upon hearing from
the officers did not That They Have Any search warrant for the purpose, she refused to go with them, but
after the officers Told Her That With or Without Her Presence They would search the house at San
Rafael, Mrs. Moncado Decided to Accompany them.
Upon arrival at the house, Mrs. Moncado noticed That Their belongings had been ransacked by American
officers and That Which the trunks she had kept in the attic and in the garage When she left the house,
had been ripped open and Their contents scattered on the floor. Lt. Olves Informed That They Were Mrs.
Moncado going to take a bundle of documents and things, Which Were separated from the rest of the
scattered things, Because They PROVED the guilt of her husband. Mrs. Moncado protested in vain. No
receipt was issued to her. Subsequently, after making an inventory of Their belongings at San Rafael,
Mrs. Moncado found the Following things missing:
" (a) Passes issued by Japanese friends for the personal safety of the petitioner and couduct;
"(B) Correspondences of the petitioner as president of the Neighborhood Association in Quezon City
During the Japanese occupation;
"(C) Correspondence of the petitioner with Japanese Certain Officers;
"(D) The personnel file and the love letters of Mrs. Moncado to Dr. Moncado and vice versa;
"(E) Marriage certificate of Dr. Moncado with Mrs. Moncado issued at Reno, Nevada;
"(F) Private correspondence and letters of Dr. Moncado to and from his Filipino Federation of America in
Hawaii and United States;

"(G) Several law books by Guevara, Albert, Francis, Harvard Classics (complete set), books on
diplomacy, international law;
"(H) A complete collection of the 'Tribune' During compilation of the same occupation Until the last day of
its Issuance;
"(I) Complete collection of American magazines, from 1940 to 1941 - the Los Angeles Examiner, San
Francisco Chronicle, Los Angeles Evening Herald and newspapers edited and owned by Dr. Moncado
and published in the United States, and National Geographic Society;
"(J) Personal letters of Dr. Moncado with several members of the United States Senate and Congress of
the United States Including a picture of President Hoover dedicated to Dr. Moncado;
"(K) Pictures with personal dedication and autograph to Dr. and Mrs. Moncado by actors and actresses
from Hollywood, Including Mary Astor, Binnie Barnes, Robert Montgomery, Clark Gable, Gary Cooper,
Boris Karloff, Wallace Beery, William and Dick Powell , Myrna Loy, Bette Davis and Ceasar Romero;
"(L) Certificate as first Flighter in the Pan-American Airways and even several stickers Issued by Pan
American Airways for Passengers' baggage;
"(M) A promissory note of Dr. Moncado for Fifty Thousand Pesos (P50, 000) in behalf of Architect Mr.
Igmidio A. Marquez of Quezon City;
"(N) Three (3) volumes of modern ballroom dancing by Arthur MacMurray of New York, pamphlets of
dancing Obtained by Dr. Moncado while I was studying dancing at Waldorf-Astoria, New York;
"(O) Two (2) volumes of rhumba, samba and tango Obtained from Mexico and Argentina by Dr. Moncado.
" (Pages 3 and 4, Petition for Certiorari and Injunction.)
On June 27, 1946, petitioner filed With The People's Court a motion praying That the return of said
documents and things be ordered. The petition was denied on July 9, 1946.
Thereupon, petitioner filed With This Supreme Court on August 10, 1946, a petition praying That the
lower court's order of July 9, 1946, be set-aside, That said court be required to order the return of the
documents and things in question to petitioner , and That the prosecutor be restrained from using and
presenting them as evidence at the trial of the criminal case for treason.
Before proceeding to Consider the questions of law raised In This Case, We Should not ignore three
questions of fact raised in the answers of respondeds: as to the identity of the documents and things, as
to Whether They Were taken from the house at San Rafael or from the house at Rosario Heights, and as
to Whether They Were taken at the time of petitioner's arrest or later.
The Fact That the return of the documents and Things Were Opposed to in the lower court by the
prosecutor, without disputing Their identity, and That in the present proceeding the prosecutor admits To
Have Them In his possession, without disputing or correcting any identity Their mistake of description
made by petitioner, That Convinced us in petitioner's and respondent's minds there is no d isagreement
on the identity in question. There should not be any doubt That the papers and things Described and
CLAIMED by petitioner are the ones in the prosecutor's possession, otherwise, instead of objecting to the
return on legal grounds, I Would Have Alleged That Such things are not in his possession, or I does not

know where They are, or That They did not exist at the all.Whether Things Were taken at San Rafael or
at Rosario Heights compeltely is immaterial. The fact Is that the reality and existence of things and
petitioner's ownership thereof, are undisputed, and That They Were taken from a house of petitioner.
That They Were taken not at the time of petitioner's arrest but much later, is indisputably PROVED by
petitioner's and his wife's depositions not contradicted by any other evidence.
This case offers a Conclusive Evidence That key ideas, rules and principles are in constant need of
restatement If They Are Not to Lose Their vitality. So That They may continue radiating the sparks of
Their truth and virtue, They Need the Repeated pounding of intense discussion, as the metal hammered
on the anvil. To make them glow With All Their force, purity and splendor, They need the continuous
smelting analysis and synthesis as the molten iron in a Bessemer furnace. Otherwise, They Become
rusty, decayed or relegated as useless scraps in the dumping ground of oblivion. What is worse, They are
Frequently Replaced by Their antitheses, Which With The deceitful pose dazzle of false gods, clothed in
tinsel and cellophane. The risk, always lurking at every turn of human life, exacts continuous
vigilance. Human minds must always be kept well tempered and sharpened as damask swords, ready to
decapitate the hydra of error and overthrow the idols from the muddy gilded pedestals of pretense and
imposture.
The government may profit from an illegality, an unconstitutional act, or even a crime to serve its AIMS,
Including the loftiest? May justice be Administered by making use of the fruits of a lawless action? If a
private individual, when to Profiting from the fruits of a criminal offeHse, is punished by law as an
accessory after the fact, Why Should the government or an official system of justice be allowed to ignore
and mock the moral principle Which Condemns the individual? Is there a moral standard for the
government different from the one by Which private conduct is Measured? While a private citizen is not
allowed to violate any rule of decency and fair play, the government may follow a procedure Which
shocks the common sense of decency and fair play? If a person can not enrich himself with stolen
property, Why Should a government be allowed to profit and make use of property tainted by theft or
robbery or smeared With The Blood of crime?
The above are among the basic questions answered That Must Be In This case, if we are not lacking the
moral courage to face all the issues raised by the parties.Other questions concern as Affected by
Personal Liberty illegal detention, illegal searches against security personnel and seizures, judicial mind
emancipation from colonial attitude.
Respondents urges us to follow the decision ill Alvero vs . Dizon (L-342) Which, besides having been
rendered by a second Supreme Court, Whose existence is violative of the Constitution, can not merit
Olaim better than a servile adherence to a legal wrong doctrine, decorated by the halo of authority of
courts of a former metropolis. There are minds forget That That duty of thinking by ourselves and of not
sticking to the Teachings of foreign mentors've Become more imperative since July 4, 1946.
The seizure of the papers and effects in question, having been made without any search warrant, was
and is illegal, and was effected in open violation of the Following Provisions of the Constitution:

10

"The right of the people to be secure in Their persons, houses, papers, and effects against unreasonable
searches and seizures Shall Not Be Violated, and no warrants Shall issue but upon probable cause, to be
determined by the Judge after examination under oath or affirmation of the complainant and the
witnesses may have produced, and Particularly Describing the place to be searched, and the persons or
things to be Seized. " (Article III, section 1 [3] of the Constitution.)
"The privacy of communication and correspondence be inviolable except upon Marshall lawful order of
the court or public safety and order When Otherwise require." (Article III, section 1 [5] of the Constitution.)
The seizure was in open violation of Also sections 3, 10, and 11 of Rule 122, Which are as follows:
"SEC. 3. Requirements for Issuing search warrant. -A search warrant issue Shall Not but upon probable
cause to be determined by the judge or justice of the peace after examination under oath or affirmation of
the complainant and the witnesses may have produced, and Particularly Describing the place to be
searched, and the persons or things to be Seized. "
"SEC. 10. Receipt for the property Seized. -The officer seizing property under the warrant must give a
detailed receipt for the same to the person on Whom or in Whose possession it was found, or in the
Absence of any person, must, in the Presence of at least two witnesses, leave a receipt in the place in
Which I found the Seized Property. "
"SEC. 11. Delivery of property and inventory thereof to court. - The officer must forthwith deliver the
property to the justice of the peace or judge of the Municipal Court or of the Court of First Instance issued
the warrant Which, together with a true inventory thereof duly verified by oath. "
Even more, the illegality and unconstitutionality amounted to two.criminal Offenses, one of them heavily
punished with correctional prison . The Offenses are punished by articles 128 and 130 of the Revised
Penal Code, Which read:
"ART. 128. Violation of domicile . - The penalty of prision correctional in its minimum period imposed upon
Shall Be Any public officer or employee who, not being Authorized by court order, Shall enter any
dwelling against the will of the owner thereof, search papers or other effects found therein without the
previous consent of Such owner, or, having surreptitiously Entered said dwelling, and being required to
leave the premises, refuse to do so Marshall.
"If the offense be Committed in the nighttime, or if any papers or effects not Constituting evidence of a
crime be not returned Immediately after the search made by the offender, the penalty Shall Be prision
correctional in its medium and maximum periods. "
"ART. 130. domicile Searching without witnesses .-The penalty of arrest increased in its medium and
maximum periods imposed Shall Be upon a public officer or employee who, in cases where a search is
proper, Shall search the domicile, papers or other belongings of any person, in the Absence of the Latter,
any member of his family, or In Their default. without the Presence of two witnesses Residing in the same
locality. "
The main authority Which Respondents rely upon is the decision of the Supreme Court of the United
States in Bordeau vs . MacDowell (256 U.S., 465), the same Followed in the decision in Alvero vs . Dizon,

11

(L-342). In the case Bordeau, Were Certain documents stolen from MacDowell. Upon finding the
documents Contained That evidence of the fraudulent use of the mails by MacDowell, delivered them to
the robbers Bordeau, in charge of the prosecution against MacDowell. The Latter filed a motion to
Prevent Bordeau from using the documents as evidence against him. The federal Supreme Court denied
the motion on the ground That there is no law or constitutional principle Requiring the government to
surrender papers Which May have eaten into its possession where the government has not Violated the
Constitutional Rights of the petitioner. Two of the greatest American Justices, Justices Holmes and
Brandeis, Whose dissenting opinions, written twenty years ago, are now the guiding beacons of the
Supreme Court of the United States, dissented, the Latter sayings:
"At the foundation of our civil liberty lies the principle to government denies Which Officials exceptional
position before the law, and subjects them to the Which rules of conduct That same commands to the
citizen. And in the development of our liberty insistence upon procedural regularity has been a large
factor. Respect for law will not be advanced by resort, in its enforcement, Which means to shock the
common man's sense of decency and fair play. "
Taking aside the great intellectual, legal and moral prestige of the two dissenters, the poignant sense of
logic and truth rockbottom Expressed by Justice Brandeis is enough to completely discredit the Majority in
the Bordeau case doctrine, a doctrine That in principle and by its evil effects appears to be irretrievably
immoral.
To merit Respect and obedience to government must be just. Justice can not exist where the good is not
distinguished from the wicked. To be just, the government must be good. To be good it must stick to the
principles of decency and fair play As They Are Understood by a common man's sense, by universal
conscience.Good ends do not justify foul means. Should one not profit from crime. Principles are not to
be sacrificed for any purpose. What is bad per se can not be good Because It Is Done to Attain a good
object. No wrong is atoned by good Intention.These are some of the maxims through Which the common
sense of decency and fair play is Manifested.
Reason is a key characteristic of man. There is no miracle Greater than scintillated When its first sparks
in the mind of a child. What before had only the vegetative life of a plant or the animal life of a mollusk or
frog, Suddenly begins to wield the prodigious power of understanding and of intelligent grasping of the
meanings and relations of the Things with Which he is In direct or remote contact through his senses. The
power of understanding Brings forth freedom of choice. This freedom develops the faculty of
discrimination Between good and evil. That Is Further Developed discrimination into a sense of justice.
While the advent of the astounding miracle of reason has kindled so much the pride of man, to the Extent
of symbolizing It With the fire stolen from the heavens by Prometeus, and of proclaiming himself as the
king of the creation, man had taken millennia of Struggles in order to Develop The Basic Ideas Which Will
insure his survival and allow him to enjoy the greatest measure of well-being and happiness.I soon
discovered That society is an essential condition to Attain his ends. As a Consequence, I Fought against
all anti-social thoughts and conduct and had to discover or invent and then Develop the principles and

12

qualities of sociability. The struggle has been long and it will Have to Continue Until The End of the
centuries. It is the same Eternal Struggle Between truth and error, between right and wrong.
While man, in the multifarious ensemble of the universe, Seems to be the lone and exclusive holder of the
divine fire of reason, I've so far failed to find the key to always correct thinking. The solution to the failures
of reason is a riddle yet to be unlocked. Man is Easily deceived or led into Committing blunders into The
Most absurd aberrations. The mysterious genes uninterrupted Which keep the chain of heredity, while
permitting the transmission of the best qualities and characteristics, Seems to LACK the power of
checking and staving off the tendencies of atavism.In the moral ctetology, Either kind of Characteristics
and qualities may be Originated and developed. The inconsistency of Respondents Malthus is
explainable.While They would raise Their brows at the mere insinuation That a single private profit may
justifiably by the results or fruits of a criminal offense, They would not measure the government With The
same moral standard. That the inconsistency may be Explained by its genesis is why We Should not
surrender ground to it. To set two moral standards, a strict one for Private Individuals vitiated with laxity
and another for the government, is to throw society into the abyss of legal ataxia.Anarchy and chaos Will
Become inevitable. Such a double standard will be nomoctonous Necessarily.
The idea of moral double standard is incompatible With The temper and idiosyncracy of social order
Established by our Constitution, and Is repugnant to its provisions. All government authority emanates
from the people in Whom Sovereignty resides. The Filipino people ordained and promulgated the
Constitution "in order to Establish That Shall government to embody Their ideals." Among These Ideals
are justice, democracy, the promotion of social justice, equal protection of the laws to everybody. Such
ideals are trampled down by the adoption of the double moral standard Which can only take its place in
the ideology of the supporters of absolute Monarchies. That Theirs is the maxim "the king can do no
wrong." The iniquities and misery Such havocked by maxim would need Hundreds or Thousands of
volumes to record them. The infamy of Japanese occupation Gave our people the bitter taste of the
operation of the double moral standard. It is the antithesis of the golden rule. It would place government in
a category apart from humanity wholly, notwithstanding its being a human institution, unredeemable-an
absurdity.
From "Brandeis, A Free Man's Life" by Alpheus Thomas Mason (pp. 568 and 569), we quote an
analogous legal situmtion:
"In the famous wire-tapping case Chief Justice Taft, delivering the opinion, overruled the defendants'
claim That the Evidence Obtained When government agents tapped telephone wires Violated Their
unreasonable searches and seizures Either or the constitutional protection against self-incrimination.
Tapped No wires Entered Their homes and offices, Taft reasoned, so there was neither search nor
seizure,
"For Justice Brandeis Such a narrow construction degraded our great charter of freedom to the level of a
city ordinance. Quoting Chief Justice Marshall's famous admonition," We must never forget That it is a
Constitution we are expounding'-I pointed out That Just as the power of Congress had been kept by court

13

interpretation abreast of scientific progress, and extended the Fundamental Law to objects of Which the
Founding Fathers never dreamed, so must the Judges Also in construing Limitations on the powers of
Congress be evermindful of Changes Brought About by discovery and invention. To have a living
Constitution, Limitations on power no less than grants of power must ba Broadly construed, 'subtler and.
more far-reaching means of invading privacy Have Become Available to the government,' Observed
Brandeis, *** The progress of science in furnishing the government with means of espionage is not likely
to stop with wire-tapping. Ways may some day be developed by Which the government, without removing
papers from secret drawers, can play them in court, and by Which it will be enabled to expose to a jury
the MOST intimate occurrences of the home. ***
"'Our government is the potent, the omnipresent teacher. For good or ill, it Teaches the whole people by
example, crime is contagious. If the government Becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself, it invites anarchy. To declare That in the administration
of the criminal law the end justifies the means - to declare That the government may commit crimes in
order to secure the conviction of a private criminal - would bring dreadful retribution. ***
"'The makers of our Constitution undertook to secure conditions conducive to the pursuit of happiness," I
emphasized. "They Recognized the significance of man's spiritual nature, of his feelings and of his
intellect. They only knew That part of the pain to, pleasure, and Satisfactions of life are to be found in
materials things. They Sought to protect Americans in Their Beliefs, Their Thoughts, Their emotions,
sensations and Their, They conferred, as against the government, the right to be let alone-the most
comprehensive of rights and the right valued by civilized men MOST. ***
"'Experience Should Teach, us to be MOST on our guard to protect liberty When the government's
Purposes are beneficent. Men horn to freedom are naturally alert to repel invasion of Their liberty by evilminded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning, but without understanding. '"(Olmstead vs. . U.S., 277 [U.S.] 438 [1928], p. 473-474, 478, 479,
485.)
The Argument That goods and personal properties illegally taken, stolen, or Snatched from the owner or
possessor without a duly issued search warrant can be Retained by the prosecution for use as evidence
in a criminal case is Instituted Initiated by an original and basic flaw. The argument Rests on the
Assumed existence or commission of a crime as its minor premise. But, under the orderly Processes of
law, the assumption has yet to be proved Please, and it is impossible to be before it can be PROVED of
any use to support and clinch the argument. The prosecution is called upon to make the assumption That
the goods and properties in question are evidence of a crime. To be valid, the assumption has to
presuppose the existence of the commission or crime. That presupposition, in order to be valid, must in
turn stand on an authoritative pronouncement Which can only be made in a final and executory decision
rendered by a court of justice. The prosecution can not make a conclusive pronouncement, as to the
existence or commission of a crime, the basic fact Which, under the argument, will entitle the prosecution
to retain and use the goods and properties in question. the argument Assumes a fact the existence of

14

Which Still Remains to be PROVED and Continues to be enveloped in the mists of the realm of
Uncertainties, Which may lead to the fact disputed right of the prosecution to retain the goods and
properties as essential evidence illegally Seized of the crime. The line of reasoning That build up the
argument can be in more abstract terms Restated as follows: Justify the means by Their Necessity to
Attain an end by starting from the premise That the end was accomplished, Such a reasoning process is
Fundamentally subversive to logic and is naturally incompatible With The workings of the human mind.
The Rules Governing the phenomena of diffusion and osmosis, isotonic equilibrium of permeability and,
of assimilation and waste dislodgment, of development and reproduction, like all laws of life, are uniform
and universal, in the nuclear chromatin Whether or the cytosome of a single protoplasmic of amoeba or
cell in the sinews of the heaviest marsupial, Whether in the formation of the smallest bud or in the display
of color and flavor by the most beautiful flower, Whether in the development of a frog or in the attainment
of the perfect curves and velvety skin of a lovely girl, the uniformity and universality of biological laws are
Manifested unrelentlessly. Any disregard of them is fatal, and will lead to irretrievable disaster and
destruction. Moral standards are the laws of social life. In a different plane and order, They are but
biological laws, Processes and Governing the vital functions of social organism. They are and Should be
uniform and universal and no single unit or organ of human society can disregard them or any one of
them alluring without catastrophic consequences.
Our decision is to grant all the prayers of the petition, and it was so ever since February 24, 1947, When
This Court took the vote for the disposal of this case. In Stating this fact we do not want to put any blame
on the distinguished member who penned the decision now to be promulgated. In justice to him, That we
may record the drafting of the Majority decision was TRANSFERRED and Entrusted to him for many
months after the final vote had been taken on the case. and it did not take him more than a month To
Have Majority opinion. In exposing the fact we mean only to Emphasize the crying need of changing a
situation or a system of procedure That Permits the promulgation of our decisions one year or more after
a case has been submitted to us for final action. It is only part of the crusade to curtail court delay Which
We felt our duty to engage in since it had been our privilege to sit in the supreme Court I, Whose vantage
in the legal field imposes upon the members thereof the role of leadership in legal thought and practice
for

The

Most

Effective

administration

of

justice.

Dissenting
Bengzon, J. :
Sanctity of the home is a by-word anywhere, anytime. The house of man was the first house of God.
In Rome the citizen's dwelling was a safe asylum. Invasion was anathema thereof.Down through the
centuries Respect for men's abodes has Remained a heritage of civilization.

15

In England, the poorest man in his cottage Could, defy all the forces of the Crown."It may be frail, its roof
may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of
England may not enter; Dare not all his forces cross the threshold of the ruined tenement. ' His home was
indeed his castle.
And in the United States: "The right of the citizen to occupy and enjoy his home, However mean or
humble, free from arbitrary invasion and search, has been protected for centuries With The MOST
solicitous care. ***" The mere fact That a man is an officer, high or low Whether of degree, Gives him no
more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and its
occupants subject to the indignity of a search for the evidence of crime , without a legal warrant procured
for That Purpose. No amount of incriminating evidence, whatever its source, will supply the place of Such
warrant. At the closed door of the home, be it palace or hovel, even bloodhounds must wait till the law, by
authoritative process, bids it open. *** "(McLurg vs . Brenton, 123 Iowa 368, quoted in 20 Phil. 473.)
Logical and practical culmination application of the above principles, embodied in our Organic Laws, is
the ruling we Announced in Alvarez vs . Court of First Instance of Tayabas, 64 Phil. 33 That Seized
documents unlawfully in a man's home must be returned - irrespective of Their evidentiary value provided seasonable motions are submitted. We Followed the Federal rule in Boyd vs . U.S. 116 U.S.,
616 and many others. We had said before That "That it is better oftentimes go unpunished crimes Than
That Should The Citizen Should be liable To Have his premises invaded, his desks broken open, his
private books, letters, and papers exposed to prying curiosity, *** under the direction of a mere ministerial
officer "*** Perhaps insensitive to the rights and feelings of others. (U.S. vs . De los Reyes and Esguerra,
20 Phil. 472, citing Cooley, Constitutional Limitations.)
In the Alvarez decision we Reflected That "of all rights of a citizen of Greater Importance are few or more
essential to his peace and happiness than the right of personal security, and That Involves the exemption
of his private affairs, books, and papers from the inspection and scrutiny of others ", and while the power
to search and seize is Necessary to public welfare, still it must be Exercised without transgressing the
constitutional rights of Citizens, Because the enforcement of statutes is never Sufficiently important to
justify violation of the basic principles of government. It is essential Agreed That the rights of the single
guaranteed by the Constitution, Must Be Given Such a liberal construction or strict construction as will be
in his favor, to Prevent gradual or stealthy encroachment Such depreciation of essential rights. (State vs .
Custer County, 198 Pac., 362, State vs. McDaniel 231 Pac., 965, 237 Pac. 373.)
Our Constitution in its Bill of Bights Decrees That "the right pf the people to be secure in Their persons,
houses, papers, and effects against unreasonable searches and seizures Shall Not Be Violated, and no
warrants Shall issue but upon probable cause, to be Determined by the judge after examination under
oath or affirmation of the complainant and the witnesses may have produced, and Particularly Describing
the place to be searched, and the persons or things to be Seized ".(Constitution, article III, section 1 [3].)

16

This is an improvement over the Provisions of the Jones Law Regarding warrants and seizures. It was
designed to make our Constitution "conform entirely" to the Fourth Amendment of the U.S.
Constitution. (Aruego, Framing of the Philippine Constitution, Vol II, p. 1043.)
The Split Between State Supreme Courts several on one side and the Federal Supreme Court on the
other, about the Admissibility of Evidence Obtained through illegal searches and seizures, was familiar to
this Court (People vs . Carlos, 47 Phil. 626, 630) before it voted to adopt the doctrine in Federal
Alvarez vs . Court of First Instance of Tayabas, supra .
This last doctrine, Applied in several subsequent cases (People vs . Sy Juco, 64 Phil. 667; Rodriguez vs .
Villamil, 37 Off. Gaz., 2416) was probably Known to the Constitutional Convention That, in Addition, made
the constitutional mandate on the point more complete and explicit, copying exactly the wording of the
Federal Constitution, a circumstance Which, coupled With The citation of Boyd vs . U.S., adherence to
the Federal Showed That debars evidence doctrine Obtained by illegal search or seizure unlawful.
It is significant the Convention Readily ADOPTED That the recommendation of the Committee on Bill of
Rights after its Chairman had spoken, explaining the meaning and Extent of the provision on searches
and seizures and especficamente Invoking the United States decisions of Boyd vs . U.S. 616 and U.S.
116 Gould vs . U.S. 225 U.S. 298, Which The Majority of this Court would now discard and
overrule.(Aruego op. Cit. Vol I, p. 160, Vol II, p. 1043, 1044.)
THEREFORE, it is submitted, with all due respect, That we are not at liberty now to select Between Two
conflicting theories. The selection has been made by the Constitutional Convention When It impliedly
chose to abide by the Federal decisions, upholding to the limit the inviolability of man's
domicil. Home! The Tie That Binds, the affection That Gives Life, The Pause That soothes, all nestle in an
atmosphere of there security. Remove that security and you destroy the home.
Under This new ruling the "King's forces" may now "cross the threshold of the ruined tenement" seize the
skeleton from the family closet and rattle it in public, in court, to the vexation or shame of the unhappy
occupants. That may be jailed Those forces for trespass, is little consolation. That may be forces Those
pardoned by the King, Their master, Suggests fearful possibilities. The sanctuary, the castle, are gone
with the wind.
An opinion of Mr. Justice Gardozo in the Court of Appeals of New York is cited as authority for the
Majority view (People vs . Defore NE 150, 585). Yet it is markworthy That, in New York, protection against
unreasonable searches and seizures is hot promised by the Constitution of the State but by a mere
statute.(Civil Rights of Law) (See the same case, and 56 CJ, p. 1156.) New York is the only state That
denies this privilege the status of a constitutional prerogative, (supra ). Hence the precedent is obviously
inconclusive.
Moreover, Admitting, for Purposes of argument only, That the decision is legally erroneous Alvarez, I
Maintain That Should the new doctrine apply to future cases - not to HEREIN petitioner who has relied on
it. In Santiago and Flores vs .Valenzuela, No. L-670, April 30, 1947 (44 Off. Gaz., 3291, 3296) I argued
for That proposition as follows:

17

"*** The reserved right to upset previous decisions is likewise qualified by the proposition That Shall have
upsetting Such prospective - not retroactive - effect.
"In Douglass vs. Pike County, 101 U.S. 677 at p. 667, it was declared," The true rule ( of stare decisis ) is
to give a change of judicial construction *** the same effect in its operation '*** as to 'a legislative
amendment, ie, prospective but not make it retroactive.'
"And in Great Northern R. Co. v. . Sunburst Oil & Ref Co., 287 U.S. 358, the Supreme Court, through Mr.
Justice Cardozo, said:
"'A state in defining the limits of adherence to precedent may make a choice for itself Between the
principle of forward operation and That of relation backward. It may Say That decisions of its highest
court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases
intimating, too Broadly (cf. Tidal Oil Co. vs . Flanagan. 263 U.S. 444, 68 Law. ed., 382, 44 S. Ct.
197, supra ), it must give them That That effect, but has never been expresaron doubt That it may so treat
them if it pleases, injustice or hardship Whenever Thereby will be averted. Gelpcke vs . Dubuque, 1 Wall.,
175, 17 Law. ed., 250; Douglass vs . Pike County, 101 U.S. 677, 687, 25 Law. ed., 968, 971; Loeb vs .
Columbia Twp., 179 U. S, 472, 492, 45 Law. ed., 280, 290, 21 S. Ct., 174, etc. '"
"This view is not unanimous, I know. However, inasmuch as one of the main arguments of the opposing
school of thought Is that it makes the decision overruling a mere 'declaratory judgment', and since That
objection is untenable In This jurisdiction where declaratory relief is permitted (Rule 66), the view
advocated HEREIN - future operation only - should be all the more acceptable to our system of
jurisprudence. More about this in the future, if i should happen to agree to an orerruling of previous
decisions and the Should question hinge on its backward or forward application. For the present, enough
to note some of the abundant literature on the point.

[1]

"

DISSIDENT
BRIONES, M. :
I disagree with the paper. I believe that should be granted by the appellant solicitude. I think in this
jurisdiction must adhere to the principle established in the case of Weeks v. . U.S. cited in the majority
decision.
If a demooracia as nortearnericana - ripe and well solidified, strengthened by a centuries-old tradition of
respect for individual freedoms and citizens and for the fair and calm temperament of a breed as
admirable as the Anglo - it was considered necessary to ensure the privileges of the citizen under the
shell of this doctrine, a fortiori we have and ensure these guarantees in a democracy like ours, young,
who are just doing the initial first steps on the road to political independence, and where demagoguery
and anarchy dangerous trends and establishing a regime of force could thwart bendioiones of freedom
won so many coast.
PARAS, M. , as.

18

The request is denied.

[ G.R. No. L-34038, June 18, 1976 ]

THE COLLECTOR OF CUSTOMS AIRPORT CUSTOMHOUSE, PASAY CITY, PETITIONER, VS. HON.
ONOFRE A. VILLALUZ, AS JUDGE OF THE CIRCUIT CRIMINAL COURT, 7TH JUDICIAL DISTRICT,
STATIONED AT PASIG, RIZAL, AND CESAR T. MAKAPUGAY, RESPONDENTS.
[G.R. No. L-34243. June 18, 1976]
NICANOR MARCELO, PETITIONER, VS. HON. ONOFRE A. VILLALUZ, AS JUDGE OF THE CIRCUIT
CRIMINAL COURT, 7TH JUDICIAL DISTRICT STATIONED AT PASIG, RIZAL, AND SALVADOR T.
MASCARDO, AS COLLECTOR OF CUSTOMS STATIONED AT THE MIA AIRPORT CUSTOMHOUSE,
RESPONDENTS.
[G.R. No. L-36376. June 18, 1976]
CALIXTO D. ENRIQUEZ, REYNALDO REYES AND LUCILA ENRIQUEZ, PETITIONERS, VS. HON.
ONOFRE A. VILLALUZ, GREGORIO CONDE AND ANASTACIA TORILLO, RESPONDENTS.
[G.R. No. L-38688. June 18, 1976]
FRANCISCO P. FELIX, PETITIONER, VS. THE HON. JUDGE ONOFRE A. VILLALUZ AND FELIX C.
HALIMAO, RESPONDENTS.
[G.R. No. L-39525. June 18, 1976]
PEDRO E. NIEVA, JR., PETITIONER, VS. HON. ONOFRE A. VILLALUZ, IN HIS CAPACITY AS JUDGE
OF THE CIRCUIT CRIMINAL COURT, 7TH JUDICIAL DISTRICT, JOSE ARELLANO, AND THE
PEOPLE OF THE PHILIPPINES, RESPONDENTS.
[G.R. No. L-40031. June 18, 1976]
PACITA NIEVA, PETITIONER, VS. HON. ONOFRE A. VILLALUZ, IN HIS CAPACITY AS JUDGE OF
THE CIRCUIT CRIMINAL COURT, 7TH JUDICIAL DISTRICT, JOSE ARELLANO AND THE PEOPLE OF
THE PHILIPPINES, RESPONDENTS.
DECISION
MAKASIAR, J.:
On July 1, 1971, petitioner Collector of Customs, Salvador T. Mascardo, filed against Cesar T.
Makapugay, a letter complaint with respondent Judge of the Circuit Criminal Court for violation of: (a)
Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713, (b) Central
Bank Circular No. 265, in relation to Section 34 of Republic Act No. 265, otherwise known as The Central
Bank Act, and (c) Sections 3601 and 3602 of Republic Act No. 1937, in relation to Sections 2505 and
2530 (m) 1 of the same Act, claiming that Cesar T. Makapugay "with malicious intention to defraud the
government criminally, willfully and feloniously brought into the country FORTY (40) cartons of 'untaxed
blue seal' Salem cigarettes and FIVE (5) bottles of Johnny Walker Scotch Whiskey, also 'untaxed',
without the necessary permit from the proper authorities. The respondent submitted a Baggage
Declaration Entry which did not declare the said articles. The Customs Examiner assigned further asked
him if he has something more to declare but the answer was in the negative. And in utter disregard of

19
existing Central Bank Circulars, particularly C.B. Circular 265, as amended, the respondent brought into
the country various Philippine Money in the amount of Two Thousand Two Hundred Eighty (P2,280.00)
Pesos cleverly hidden in one of the pieces of baggage examined by the assigned customs examiner,
without prior permit from the Central Bank authorities. * * *" (p. 11, rec.).
Respondent Judge assumed jurisdiction to conduct and did conduct the preliminary investigation, and on
July 6, 1971, issued the challenged order, dismissing "the case with prejudice and ordering the return to
private respondent the amount of P2,280.00 his passport No. Ag-2456 FA - No. B103813, and one (1)
box of airconditioning evaporator only, as well as the forfeiture of forty (40) cartons of untaxed blue seal
Salem cigarettes and five (5) bottles of Johnny Walker Scotch Whiskey" (p. 13, rec.).
Armed with said order, private respondent Makapugay demanded that petitioner release the articles so
stated. Petitioner Collector of Customs refused to obey the order due to the "prior institution of seizure
proceedings thereon." The refusal prompted respondent Makapugay to file a complaint for "Open
Disobedience" under Article 231 of the Revised Penal Code, before the City Fiscal of Pasay City.
Hence, this petition for certiorari with preliminary injunction, seeking to annul and set aside the order
dated July 6, 1971 on the ground that respondent Judge has no power to conduct a preliminary
investigation of criminal complaints directly filed with him, cannot legally order the dismissal "with
prejudice" of a criminal case after conducting a preliminary investigation thereon, and is without authority
to order the return of articles subject of seizure proceedings before Customs authorities.
In due time, respondents filed their respective answers to the petition and subsequently both parties
submitted their respective memoranda in lieu of oral argument.
G. R. No. L-34243
On June 22, 1971, respondent Collector of Customs filed a letter-complaint with respondent Judge
against petitioner Nicanor Marcelo for an alleged violation of Section 3602 in relation to Section 2505 of
Republic Act 1937, otherwise known as the Tariff and Customs Code, supposed to have been committed
in the following manner:
"* * * Mr. Marcelo who is an arriving passenger from Hongkong on board a Philippine Air Lines plane,
Flight 307, on June 22, 1971, criminally, feloniously, and with intention to defraud the government did not
declare the contents of his pieces of baggage in the Baggage Declaration Entry nor with the assigned
Customs Examiner. * * * When his pieces of baggage were examined, instead of personal effects as
declared in the Baggage Declaration Entry, what were found were various assorted Watches, Bags,
Montagut shirts and Dress materials which are highly taxable.
"The act of passenger Marcelo in intentionally refusing to declare the said articles in the Baggage
Declaration Entry, and before the Customs Examiner despite inquiries made, constitute a criminal offense
within the meaning of Section 3602 of the Tariff and Customs Code of the Philippines. * * * (p. 19, rec.).
The criminal complaint having been docketed as Case No. CCC-VII-854-P.C., the respondent Judge
assumed jurisdiction over the objection of petitioner's counsel, conducted the preliminary examination and
investigation, simultaneously in the manner provided for by Section 13, Rule 112 of the New Rules of
Court, and thereafter on October 6, 1971 issued the following order:
"WHEREFORE, there being a preliminary investigation and examination conducted by the Court and
considering that the respondent was given a chance to defend himself let a Warrant of Arrest be issued

20
for his apprehension. The respondent is hereby ordered to post a bond in the amount of P5,000.00 for his
provisional release.
"Pursuant to Section 6, Rule 135 of the New Rules of court, in relation to Section 13, Rule 113 thereto,
the City Fiscal of Pasay is hereby ordered to file the corresponding information against the respondent
before this court of competent jurisdiction within FORTY EIGHT (48) HOURS from receipt hereof" (p. 23,
rec.).
Petitioner Nicanor Marcelo filed this action for certiorari with preliminary injunction, impugning the validity
of the order of respondent Judge dated October 6, 1971, on the same ground as the petition in G.R. No.
L-34038.
On October 20, 1971, the Supreme Court adopted a resolution requiring respondents to file an answer
and likewise issued a writ of preliminary injunction, "restraining respondent Judge, his representatives,
assigns or persons acting upon his orders, place or stead, from executing, enforcing and implementing
his order of October 6, 1971 * * *" (p. 32, rec.).
In compliance therewith, respondent Judge filed a petition for admission of answer on November 29,
1971 (pp. 43-44, rec.), which was granted by this Court in its December 13, 1971 resolution (p. 62, rec.).
On the other hand, respondent Collector of Customs, through the Solicitor General, filed a manifestation
on February 1, 1972, adopting as his answer to the petition, the legal grounds averred in the original
petition in G.R. No. L-34038, Collector of Customs, etc. versus Hon. Onofre A. Villaluz, etc., et al. (p. 72,
rec.).
On June 13, 1972, the Supreme Court by resolution resolved to consider the case submitted for decision
after noting the failure of petitioner to file his memorandum (p. 94, rec.).
G. R. No. L-36376
On February 22, 1973, private respondents Gregorio Conde and Anastacia Torillo, filed a complaint
directly with the Circuit Criminal Court, indicting petitioners with violations of the Anti-Graft Law.
The complaint was ultimately docketed and on the same day (February 22, 1973), respondent Judge
forthwith issued an order of the following tenor:
"Considering that the complaint filed * * * * sufficient in form and substance, the same having been filed in
accordance with Section 13, Rule 112 of the New Rules of Court, and pursuant to the doctrine laid down
by the Supreme Court in the case of "Mateo vs. Villaluz", let the preliminary investigation of this case be
set on February 24, 1973 at 8:00 o'clock in the morning" (p. 22, rec.).
On the day set, petitioners appeared at the sala of respondent Judge who proceeded to conduct a
preliminary investigation of the case. The same was reset on February 26, 1973.
Immediately before the hearing of February 26, 1973, petitioners, through counsel, filed an "Urgent
Motion to Suspend Preliminary Investigation" contesting the power of the respondent Judge to conduct
the preliminary examination and investigation (p. 23, rec.), which was denied by respondent Judge in his
order dated February 27, 1973 (p. 31, rec.). Counsel for petitioners then asked for time to raise the issue
before this Court, which respondent Judge granted by giving petitioners a period of just one (1) day to
seek relief from this Tribunal.
Accordingly, herein petitioners filed this petition.

21
On March 2, 1973, this Court required respondents to answer the petition and issued a temporary
restraining order "enjoining respondent Judge from * * * causing and effecting the arrest of petitioners
herein" (p. 39, rec.).
In his answer filed on March 14, 1973, respondent Judge, invoking the same arguments in G.R. No. L34243, held on to the view that the Circuit Criminal Courts are vested with the power and authority to
conduct preliminary investigations. Private respondents conformed thereto.
G. R. No. L-38688
On May 23, 1974, private respondent Felix Halimao filed a criminal complaint directly with the Circuit
Criminal Court presided over by respondent Judge charging herein petitioner with alleged violations of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which complaint
was docketed as Criminal Case No. Prel. Inv. - 116-Rizal.
At the hearing of May 27, 1974, petitioner, through counsel, filed an "Urgent Motion to Suspend
Preliminary Investigation" (p. 9, rec.), based on the ground that respondent Judge has no authority to
conduct the same.
After arguments by counsels, for both parties, the respondent Judge denied petitioner's motion. An oral
motion for reconsideration was likewise denied (pp. 14-15, rec.).
Hence, this petition.
On May 31, 1974, this Court by resolution gave due course to the petition and issued a restraining order,
"enjoining respondent Judge, his agents, representatives, and/or any person or persons acting upon his
orders or in his place or stead from proceeding further with the preliminary investigation * * *" (p. 24, rec.).
On June 17, 1974, it appearing that the case involved in the petition is criminal in nature, the Court
required herein petitioner to IMPLEAD the People of the Philippines as party-respondent (p. 26, rec.). In
conformity thereto, petitioner through counsel, filed on June 28, 1974 an amended petition impleading
The People (pp. 49-50, rec.).
Except for the Solicitor General who appeared for The People of the Philippines, respondents in answer,
frontally met the averments of petitioner.
G. R. No. L-39525
On October 24, 1974, petitioner filed this instant petition seeking to annul "any preliminary investigation
conducted by respondent Judge in Preliminary Inv. No. 72-Rizal, Circuit Criminal Court, 7th Judicial
District, as well as the warrant, if any, that may be issued for the arrest and imprisonment of petitioner"
and to enjoin permanently respondent Judge from conducting preliminary investigations and from
ordering petitioner's arrest.
On October 30, 1974, the Court required the respondents to file their answer within ten (10) days from
notice thereof and issued, effective immediately, a temporary restraining order against respondent Judge
(p. 64, rec.).
On November 13, 1974, the Solicitor General filed a manifestation requesting to be excused from filing an
answer considering that in three other cases (The Collector of Customs v. Hon. Onofre A. Villaluz, G.R.

22
No. L-34038;Nicanor Marcelo v. Hon. Onofre A. Villaluz, G.R. No. L-34243; and Francisco Felix v. Hon.
Onofre A. Villaluz, G.R. No. L-38688) which involve the same legal issue, his office maintains that
respondent Judge has no authority to conduct a preliminary investigation of criminal cases which he may
try and decide under Republic Act No. 5179 (p. 81, rec.).
On November 20, 1974, private respondent filed his answer (pp. 87-104, rec.).
Petitioner, on January 22, 1975, filed a motion praying that the instant case be consolidated and decided
jointly with G. R. Nos. L-34038, L-34243, L-36376 and L-38688 as they involve the same issue; and that
the memoranda filed for petitioners in said four cases be reproduced and adopted as the memorandum
for petitioner in this case, which should be deemed submitted for decision together with the
aforementioned cases (pp. 122-124, rec.). Said motion was granted in the resolution of February 10,
1975 (p. 129, rec.).
In his pleading dated February 5, 1975, private respondent (pp. 130-132, rec.) stated that he joins the
petitioner in his plea for the consolidation of the instant case with cases Nos. L-34038, L-36376 and L38688 and prayed that the memorandum filed by respondent in L-38688 be considered reproduced and
adopted as the memorandum for private respondent in this case, in addition to the affirmative defenses
and arguments contained in private respondent's answer to the petition, and that this case be submitted
for decision together with the aforementioned cases (p. 137, rec.).
The records disclosed the following antecedent facts.
On January 11, 1974, herein private respondent Jose Arellano filed a complaint against Pedro E. Nieva,
Jr., herein petitioner, together with his wife Pacita and daughter Patricia N. Sacasas, with the Circuit
Criminal Court, Seventh Judicial District, Pasig, Rizal, for violation of the Anti-Graft and Corrupt Practices
Act (RA No. 3019) in connection with the P230,000.00 industrial loan obtained by the Areson Woodtech
Manufacturing Company headed by the complainant, Jose Arellano, from the Development Bank of the
Philippines, where herein petitioner holds the position of Auditor. The case was docketed therein as
Criminal Case Prel. Inv. CCC-VII-72 Rizal (pp. 1-2, 90-91, pp. 14-16 [Annex "A"] rec.).
On the same day the aforesaid complaint was filed in court, respondent Judge issued an order that reads:
"Pursuant to Section 14, Rule 112 of the New Rules of Court in relation to the doctrine laid down by the
Supreme Court in the case of Mateo versus Villaluz', Assistant City Fiscal Teodoro B. Santos is hereby
ordered to conduct the preliminary investigation of the above-entitled case within five (5) days from
receipt hereof and to file the necessary information in a court of competent jurisdiction if the evidence so
warrants.
"* * * *" (pp. 2, 91 [Annex "B"], pp. 21-22, rec.).
On May 22, 1974, investigating Fiscal Teodoro B. Santos endorsed the records of the case back to
respondent Judge, because
. . . (T)he facts and circumstances which has (sic) been the basis of this instant suit is the same set of
facts and circumstances and involving the same parties in a case of ESTAFA THRU FALSIFICATION
now pending preliminary investigation and also before this Honorable Court. Hence, this endorsement in
order to avoid duplication of effort and time in the resolution and disposition of the same incident."
In an urgent ex-parte motion dated May 24, 1974 filed with the Circuit Criminal Court pursuant to
paragraph 1 of the Joint Circular of the Department of Justice and the Department of National Defense

23
dated April 29, 1974, herein private respondent prayed that the endorsement of Fiscal Santos be given
due course and that the preliminary investigation be conducted by the respondent Judge (pp. 3, 92, 104
[Annex "1"] rec.).
Herein petitioner opposed the same in a pleading dated June 1, 1974 (p. 3, pp. 40-49 [Annex "F"], rec.),
which was amplified in another pleading dated September 24, 1974 (pp. 3, 50-59 [Annex "G"], rec.).
Under date of June 18, 1974, private respondent filed a motion to strike out herein petitioner's opposition
to complainant's ex-parte urgent motion for preliminary investigation in view of the failure of herein
petitioner's counsel to comply with the order of the Court to furnish a copy of his opposition to
complainant Jose Arellano (pp. 93, 105-106 [Annex "2"], rec.).
On September 24, 1974, herein petitioner filed his opposition to the motion to strike out herein
respondent's opposition (pp. 7, 55-59 [Annex "G"], rec.). On the same day, a hearing was conducted by
the respondent Judge on the urgent motion for preliminary investigation and immediately thereafter, he
denied said opposition of herein petitioner (Annex "H", p. 62, pp. 3, 93, rec.).
Hence, this petition.
G. R. No. L-40031
On November 2, 1973, Jose Arellano, private respondent herein, filed with the Circuit Criminal Court at
Pasig, Rizal, a complaint charging herein petitioner with estafa, allegedly committed under the
circumstances provided for in paragraph 4 1(b), Article 315 of the Revised Penal Code (p. 12, rec.). Said
complaint was subsequently docketed as CCC Case No. Prel. Inv.-65-Rizal. Thereupon, respondent
Judge proceeded to conduct the preliminary investigation in question. After the termination of the
proceedings, respondent Judge issued on May 31, 1974 the challenged resolution which reads:
"Wherefore, pursuant to Section 13, Rule 113 of the New Rules of Court, Assistant City Fiscal Teodoro B.
Santos is hereby ordered to file the necessary information for the crime of Estafa against respondent
Pacita Nieva, in a court of competent jurisdiction, within forty-eight (48) hours from receipt hereof.
"Let a warrant of arrest be issued for the immediate apprehension of respondent Mrs. Pacita Nieva, and
for her provisional liberty, she is hereby ordered to post a bond in the amount of P20,000.00" (p. 24, rec.).
On July 26, 1974, petitioner's counsel filed an urgent motion to declare the preliminary investigation
proceedings null and void ab initio due to lack of jurisdiction on the part of the court to conduct the same,
re-echoing the arguments invoked by petitioners in G.R. Nos. L-34038, L-34243, L-36376 and L-38688
(p. 14, rec.).
In an order dated August 8, 1974, respondent Judge denied the same (p. 22, rec.).
On January 28, 1975, this Court by resolution required respondents to file an answer to the petition and
not to move for the dismissal of the same. The Court further resolved to consolidate the case with Cases
Nos. L-38688, L-34038, L-34243, and L-36376 (p. 26, rec.).
In a manifestation filed on February 10, 1975, the Solicitor General requested that he be excused from
filing an answer on the ground that in three cases (G.R. Nos. L-34038, L-34243 and L-38688), which
involve the same legal issue, the counsel for the People has taken the position that respondent Judge
has no authority or jurisdiction to conduct a preliminary investigation of criminal cases which he may try
and decide under Republic Act No. 5179.

24
Private respondent, on the other hand, through the Citizens Legal Assistance Office of the Department of
Justice, filed his answer on February 20, 1975, maintaining that respondent Judge has jurisdiction to
conduct preliminary investigation, invoking particularly Section 13, Rule 112 of the Revised Rules of Court
in relation to Sections 1, 3 and 6 of Republic Act No. 5179.
I
The one common legal issue posed by these six cases is whethser a Circuit Criminal Court possesses
the power to conduct preliminary investigations.
Neither the explanatory note to House Bill No. 9801 (now R.A. No. 5179) nor the available Congressional
debates intimate that Circuit Criminal Courts are clothed with the authority to conduct preliminary
examinations and investigations (Congressional Records of House, March 28, 1967, pp. 41-45; May 15,
1967).
WE therefore examine the law.
Petitioners, in maintaining that respondent Judge has no such power, rest their claim on Section 1 of
Republic Act No. 5179, which provides:
"In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is
hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First
Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction
of the latter:
a. Crimes committed by public officers, crimes against persons and crimes against property as defined
and penalized under the Revised Penal Code, whether simple or complexed with other crimes;
b. Violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, ***;
c. Violations of Sections 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175
and 345 of the National Internal Revenue Code" (italics supplied).
Petitioners argue that said courts, having been conferred limited jurisdiction, cannot exercise such power
of preliminary investigation, the same not being embraced and contemplated within its given function to
"try and decide" specific criminal cases.
What is limited by Republic Act No. 5179 is the scope of the cases that may be tried by Circuit Criminal
Courts.
Circuit Criminal Courts are of limited jurisdiction, only because they cannot try and decide all criminal
cases falling under the jurisdiction of the Courts of First Instance as courts of general jurisdiction. They
can only take cognizance of cases expressly specified in Section 1 of Republic Act No. 5179, as
amended by Presidential Decree No. 126. Nevertheless, they have the same powers and functions as
those conferred upon regular Courts of First Instance necessary to effectively exercise such special and
limited jurisdiction. This is plain and evident from Sections 3 and 6 of their organic law, Republic Act No.
5179:
"SECTION 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First
Instance and the trial, and disposition and appeal of criminal cases therein shall be applicable to the
circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of
this Act.

25
**************
"SECTION 6. * * * Unless inconsistent with the provisions of this Act, the Circuit Criminal Courts shall
have the same powers as those conferred by the Judiciary Act and the Rules of Court upon regular
Courts of First Instance, insofar as may be necessary to carry their jurisdiction into effect.
Judges of the regular Courts of First Instance are expressly conferred the authority to conduct preliminary
examination and investigation by Sections 13 and 14 of Rule 112 of the Revised Rules of Court:
"SECTION 13. Preliminary examination and investigation by the judge of the Court of First Instance. Upon complaint filed directly with the Court of First Instance, without previous preliminary examination
and investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the justice of
the peace referred to in the second paragraph of Section 2, hereof for preliminary examination and
investigation, or himself conduct both preliminary examination and investigation simultaneously in the
manner provided in the preceding sections, and should he find reasonable ground to believe that the
defendant has committed the offense charged, he shall issue a warrant for his arrest, and thereafter refer
the case to the fiscal for the filing of the corresponding information" (italics supplied).
"SECTION 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in
cases cognizable by the Court of First Instance. - Except where an investigation has been conducted by a
judge of first instance, justice of the peace or other officer in accordance with the provisions of the
preceding sections, no information for an offense cognizable by the Court of First Instance shall be filed
by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a
preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. * * *"
The power of preliminary examination and investigation, which may be exercised by judges of the Circuit
Criminal Courts, is without doubt, "not inconsistent with the provisions of Republic Act No. 5179," and
likewise, "necessary to carry their jurisdiction into effect."
Moreover, Congress further confirmed that the Court of First Instance has the power to conduct
preliminary investigation by approving on September 8, 1967 Republic Act No. 5180, prescribing a
uniform system of preliminary investigation by all government prosecutors, which provides:
"SECTION. 1. Notwithstanding any provision of law to the contrary and except when an investigation has
been conducted by a Judge of First Instance, city or municipal judge or other officer in accordance with
law and the Rules of Court of the Philippines, no information for an offense cognizable by the Court of
First Instance shall be filed by the provincial or city fiscal or any of his assistants, or by a state attorney or
his assistants, without first giving the accused a chance to be heard in a preliminary investigation
conducted by him by issuing a corresponding subpoena. * * *
"SECTION. 2. The provisions of Section fifteen, Rule 112, of the New Rules of Court of the Philippines,
shall be observed in the investigations of persons in custody."
From the above-quoted provisions, Republic Act No. 5180 likewise continues the procedure prescribed in
the Revised Rules of Court of 1964, particularly Rule 112 thereof.
The aforequoted portion of Section 1 of Republic Act No. 5180 was not modified by the amendatory
Presidential Decrees Nos. 77 and 911 issued respectively on December 6, 1972 and March 23, 1976.

26
More decisively, the 1935 as well as 1973 Constitutions vests this essential power in all courts to first
determine probable cause before ordering the arrest of those charged with a criminal offense (Section
[3]
1 , Art. III, 1935 Constitution; Sec. 3, Art. IV, 1973 Constitution). The determination of "probable cause"
is the sole object of preliminary examinations. Surely, Congress could not have possibly intended to deny
the Circuit Criminal Courts such constitutional prerogative, which is part of the basic constitutional right of
an individual whose person cannot be legally seized without prior preliminary examination by a judge.
WE enunciated that the creation of the Circuit Criminal Courts is for the purpose of alleviating the burden
of the regular Courts of First Instance and to accelerate the disposition of criminal cases pending or to be
filed therein(People vs. Gutierrez, etc., et al., 36 SCRA 172; Osmea vs. Sec. of Justice, G.R. No. L32033, Sept. 30, 1971, 199) or to contribute to the speedy resolution of criminal cases and help curb the
progression of criminality in the country (Paraguya vs. Tiro, 41 SCRA 137). As opined by Mr. Justice
Barredo in his concurring opinion in the Gutierrez case, supra, "* * * Circuit Criminal Courts are nothing
but additional branches of the regular Courts of First Instance in their respective districts * * *", which he
reiterated in his concurring opinion in the Osmea case, thus:
"My principal reason for my vote in favor of the judgment in this case is that I cannot find any justification
for allowing the Secretary of Justice to have any part at all in the distribution or assignment of
cases among the different branches of any Court of First Instance, of which the corresponding Circuit
Criminal Court is one. I took this view in my concurring opinion in the case of People v. Gutierrez, cited in
the main opinion of Justice Villamor, and I cannot see why I must opine differently now. * * *" (41 SCRA
211).
If the main purposes then in creating Circuit Criminal Courts are to alleviate the burden of the regular
Courts of First Instance and to accelerate the disposition of the cases therein as well as stem the tide of
criminality, it is only logical that such authority vested in the judges of the Courts of First Instance is
likewise conferred on Circuit Criminal Courts. Otherwise, the Courts of First Instance would still be
carrying the burden of conducting preliminary investigations in those cases where Circuit Criminal Courts
have jurisdiction and consequently delaying the trial and disposition of criminal cases pending before
such Courts of First Instance.
That Congress, in enacting Republic Act No. 5179 clearly intended, by Sections 3 and 6 thereof, to clothe
the Circuit Criminal Court with all the powers vested in regular Courts of First Instance including the
authority to conduct preliminary examinations and investigations, is confirmed by the Dangerous Drugs
Act of 1972, otherwise known as Republic Act No. 6425, as amended by Presidential Decree No. 44,
Section 39 of which confers on Circuit Criminal Courts, Courts of First Instance and Juvenile and
Domestic Relations Courts concurrent original jurisdiction over all offenses punishable thereunder and
expressly directs that the "preliminary investigation of cases filed under this Act shall be terminated within
a period of thirty (30) days from the date of their filing." Before the amendment, the law required only
seven (7) days from the date of the commencement of the preliminary investigation. Section 39, as
amended, reads:
"Sec. 39. Jurisdiction. -- The Court of First Instance, Circuit Criminal Court, and Juvenile and Domestic
Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable
under this Act: Provided, that in cities or provinces where there are Juvenile and Domestic Relations
Courts, the said courts shall take exclusive cognizance of cases where the offenders are under sixteen
years of age.
"The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30)
days from the date of their filing.

27
"Where the preliminary investigation is conducted by a prosecuting officer and a prima facie case is
established, the corresponding information shall be filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary investigation is conducted by a judge and a prima
facie case is found to exist, the corresponding information shall be filed by the proper prosecuting officer
within forty-eight (48) hours from the date of receipt of the records of the case.
"Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the
date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15)
days from the date of submission of the case."
It is patent that the aforequoted provision of Section 39 of Republic Act No. 6425 affirms the power of the
Circuit Criminal Courts to conduct preliminary examination and investigation in all the cases falling under
their jurisdiction and additionally fixes the period for preliminary investigation, the filing of the information
and the rendition of decisions in all offenses penalized by the Dangerous Drugs Act of 1972.
Under the amendment, the Circuit Criminal Court no longer has exclusive, but still retains concurrent,
jurisdiction with the Courts of First Instance and Juvenile and Domestic Relations Courts under the
Dangerous Drugs Act. Its authority to conduct preliminary examination and investigation granted under
Section 6 of Republic Act No. 5179, remains intact and undiminished; because the amendatory decree
expressly directs that "If the preliminary investigation is conducted by a judge and a prima facie case is
found to exist, the corresponding information should be filed by the proper prosecuting officer * * *." There
is nothing in the amendatory decree from which it can be reasonably inferred that since the jurisdiction of
the Circuit Criminal Court over violations of the Dangerous Drugs Act is no longer exclusive, Circuit
Criminal Court Judges no longer possess the authority to conduct preliminary examination and
investigation.
Recognizing the constitutional power of the courts, including the Courts of First Instance, to conduct
preliminary examination, other special laws specifically vest such authority exclusively in the Court of First
Instance in cases of violation of the Revised Election Code (Sec. 187, 1947 Revised Election Code, as
amended; Sec. 234, 1971 Rev. Election Code) and of the Anti-Subversion Act when the penalty
imposable for the offense is prision mayor to death (Sec. 16, Rep. Act No. 1700).
It is urged that the word "judge" in the above-quoted section of Presidential Decree No. 44 (and also in
the 1935 and 1973 Constitutions) contemplates not the Court of First Instance Judge nor the Circuit
Criminal Court Judge but the municipal judge. As heretofore stated, it is an elementary precept in
statutory construction that where the law does not distinguish, WE should not distinguish (Colgate
Palmolive Philippines, Inc. vs. Gimenez, L-14787, Jan. 28, 1961, 1 SCRA 267). The statute cannot give a
restricted meaning to the generic term "judge" used in the constitutional guarantee against reasonable
searches and seizures.
Furthermore, in People versus Manantan (L-14129, July 31, 1962, 5 SCRA 684), a justice of the peace,
accused of violating Section 54 of the Revised Election Code, moved to dismiss the information on the
ground that the law refers merely to a justice, judge, or fiscal and that being a justice of the peace, he is
beyond the coverage of the said Code. The Supreme Court in denying such contention, held that there
was no need of including justices of the peace in the enumeration in said section because the legislature
had availed itself of the more generic term "judge". The term "judge", not modified by any word or phrase,
is intended to comprehend all kinds of judges, including justices of the peace.
The cases of People versus Paderna (22 SCRA 273) and Paraguya versus Tiro (41 SCRA 13) involved
not the power of the Circuit Criminal Court to conduct preliminary investigation, but its jurisdiction to try
and decide certain cases. They do not at all reveal an iota of any further restriction on the limited
jurisdiction of the Circuit Criminal Court other than those delineated in existing laws.

28
Thus, in the Paderna case, supra, involving a violation of Section 174 of the Tax Code, Mr. Chief Justice
Castro, then Associate Justice, speaking for the Supreme Court in ruling that the Circuit Criminal Court
was without jurisdiction to take cognizance of the case, stated:
"* * * [T]he charge is for unlawful possession of untaxed 'blue seal cigarettes' of an appraised value of
less than P500.00 x x x and the penalty provided under Republic Act 4713 is a fine of not less than
P50.00 nor more than P200.00 and imprisonment of not less than 5 nor more than 30 days because the
value of the cigarettes does not exceed P500.00, this case falls within the original and exclusive
jurisdiction of the city court * * *."
"* * * Section 1 of Republic Act 5179, which took effect on September 8, 1967, provides in part that circuit
criminal courts shall have - limited jurisdiction concurrent with the regular court of first instance, to try and
decide the following criminal cases falling under the original and exclusive jurisdiction of the latter.
"* * * * * *
"The jurisdiction of the circuit criminal courts is thus dependent not only on the type of cases but also on
the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and original
jurisdiction of the City Court, it cannot, even if it involves a violation of section 174 of the Tax Code, be
taken cognizance of by circuit criminal courts, the jurisdiction of which is concurrent with that of courts of
first instance where the latter's jurisdiction is original and exclusive."
The same ruling was substantially reiterated in the more recent Tiro case, supra, involving indirect bribery
committed by a public officer. In passing upon the issue of the Circuit Criminal Court's limited jurisdiction,
the Supreme Court, through Mr. Justice Jose B.L. Reyes, held:
"* * * The law (R.A. 5179) confined the jurisdiction of the circuit criminal courts (which is even made
concurrent with the courts of first instance) to crimes committed by public officers; * * * only where they
are falling within the original and exclusive jurisdiction of the court of first instance. In short, circuit criminal
courts' jurisdiction was limited merely to cases involving crimes specifically enumerated in Section 1 of
Republic Act 5179, for which the penalty prescribed by law is imprisonment for more than 3 years (or 6
years in proper cases), or fine of more than P3,000.00 (or P6,000.00 as the case may be), or both such
fine and imprisonment (Sec. 44[f] in relation to Sec. 87 [c], Judiciary Act of 1948, as amended; Esperat
vs. Avila, L-25922, June 30, 1967, 20 SCRA 596; Mangila vs. Lantin, L-24735, October 31, 1969; 30
SCRA 81; People vs. Tapayan, L-36885, November 28, 1969, 30 SCRA 529; Andico vs. Roan, L-26563,
April 16, 1968, 23 SCRA 93).
"Since indirect bribery is penalized under the Revised Penal Code with imprisonment for a period not
exceeding six months, suspension and public censure (Art. 211, RPC), the case is clearly removed from
the competence of the circuit criminal court to pass upon. It is not denied that the crime of indirect bribery
is essentially one committed by public officers. Jurisdiction of the court, however, is determined not only
by nature of the offense charged in the information, but also by the penalty imposable thereto. * *" (italics
supplied).
In these two cases, it was made clear that for the Circuit Criminal Court to acquire jurisdiction, the offense
must not only be one of those enumerated under Section 1 of Republic Act No. 5179; it should also be
within the original and exclusive jurisdiction of the regular Courts of First Instance. In the aforesaid cases,
the Circuit Criminal Court was clearly without jurisdiction to hear and decide the offenses involved, by
command of the specific provisions of its charter, the Judiciary Act and the Revised Penal Code; and not
by a directive of the Supreme Court, which merely applied in said cited cases the statutory prescriptions.

29
The Supreme Court cannot legally define additional restrictions, which is the sole prerogative of the lawmaking authority.
The contrary view appears to entertain the mistaken notion that Section 13, Rule 112 of the Revised
Rules of Court, being a rule of procedure, the same should be rendered inoperative by reason of the fact
that the Supreme Court cannot, by promulgating a rule of procedure, arrogate jurisdiction unto itself or
grant any to the lower courts.
It is of course basic that only the Constitution and the law can confer jurisdiction to hear and decide
certain cases. But equally true is the fact that both the 1935 and 1973 Constitutions expressly delegated
to the Supreme Court the rule-making authority - the power to promulgate rules of pleading, practice and
procedure and to amend the existing laws thereon. The law or rule on preliminary investigation is
undoubtedly a rule of procedure.
The 1935 Constitution states:
"The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts
of the same grade and shall not diminish, increase or modify, substantive rights. The existing laws on
pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Courts,
subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the
power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the
admission to the practice of law in the Philippines" (Sec. 13, Art. VIII, 1935 Constitution).
The 1973 Constitution similarly authorizes the Supreme Court to
"Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which, however, may be repealed, altered, or
supplemented by the National Assembly. Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not
[5]
diminish, increase or modify substantive rights" (Sec. 5 , Art. X, 1973 Constitution).
Sections 13 and 14 of Rule 112 of the Revised Rules of Court merely implement Section 3 of Article III of
the 1935 Constitution (now Section 3 of Article IV of the 1973 Constitution). Section 13 of Rule 112 of the
Revised Rules of Court was not an innovation as it merely restated Section 13 of General Order No. 58,
Section 37 of Act No. 1627, and Sections 2 and 4 of Rule 108 of the 1940 Rules of Court, in obedience to
its rule-making authority under Section 13, Article VIII of the 1935 Constitution. Rule 112 does not modify
substantive rights but continues the procedure already operative prior to the 1935 Constitution.
WE have ruled that Rule 108 of the 1940 Rules of Court, which is the predecessor of Rule 112 of the
1964 Revised Rules of Court, is an adjective or procedural rule (Bustos vs. Lucero, 81 Phil. 640).
While admitting that Courts of First Instance were previously clothed with the power of preliminary
investigation by virtue of Section 37 of Act 1627, nevertheless, it is argued that this same section was
amended when the Judiciary Act of 1948 was enacted since under Section 99 of said Judiciary Act, "All
laws and rules inconsistent with the provisions of this Act" were repealed. The inconsistency, it is claimed,
lies in the fact that while the authority of municipal courts and city courts to conduct preliminary
investigation was reiterated in said Judiciary Act, there was no mention therein whether Courts of First
Instance Judges are still possessed of such authority.

30
If such repeal was intended, it is unconstitutional; because the Constitution of 1935 and 1973 vest in the
judge the power to issue a warrant of arrest or search warrant after conducting a preliminary investigation
or examination. Congress could not divest the court of such authority as the Constitution does not permit
it, for the constitutional guarantee on arrest or search warrant is not qualified by some such phrase as
"unless otherwise provided by law." For a clearer appreciation, the Constitutional guarantee on arrest and
search warrant reads:
"(3) The rights of the people to be secure in their persons, houses, papers, and effects against
unreasonablesearches and seizures shall not be violated, and no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized" (Art. III, 1935 Constitution, italics supplied).
"Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonablesearches and seizures of whatever nature and for any purpose shall not be violated, and
no search warrant orwarrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized (Art. IV, 1973 Constitution, italics supplied).
It is clear from the aforequoted provisions of the 1973 Constitution that until now only the judge can
determine the existence of probable cause and can issue the warrant of arrest. No law or presidential
decree has been enacted or promulgated vesting the same authority in a particular "responsible officer."
Hence, the 1973 Constitution, which was ratified and took effect on January 17, 1973, should govern the
last four cases, namely, Nos. L-36376, L-38688, L-39525 and L-40031, which arose after January 17,
1973.
But even under the 1935 Constitution, the term seizures or seized comprehends arrest. Thus, in Vivo
versus Montesa (July 29, 1968, 24 SCRA 155), reiterating the doctrines in the cases of Qua Chee Gan, et
al. vs. Deportation Board (L-20280, Sept. 30, 1963) and Morano vs. Vivo (L-22196, June 30, 1967, 20
SCRA 462), WE ruled unanimously through Mr. Justice J.B.L. Reyes:
"Nevertheless, we are of the opinion that the issuance of warrants of arrest by the Commissioner of
Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts
with paragraph 3, Section 1, of Article III (Bill of Rights) of our Constitution, providing:
3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and the persons or things to be
seized.'
"It will be noted that the power to determine probable cause for warrants of arrest is limited by the
Philippine Constitution to judges exclusively, unlike in previous organic laws and the Federal Constitution
of the United States that left undetermined which public officials could determine the existence of
probable cause. And in Qua Chee Gan, et al. vs. Deportation Board, L-20280, promulgated on
September 30, 1963, this Court pointed out that Executive Order No. 69, of July 29, 1947, issued by
President Roxas, in prescribing the procedure for deportation of aliens, only required the filing of a bond
by an alien under investigation, but did not authorize his arrest.

31
"Discussing the implications of the provision of our Bill of Rights on the issuance of administrative
warrants of arrest, this Court said in the same case:
'*** *** ***
Under the express terms of our Constitution it is, therefore, even doubtful whether the arrest of an
individual may be ordered by any authority other than the judge if the purpose is merely to determine the
existence of probable cause, leading to an administrative investigation. The Constitution does not
distinguish between warrants in a criminal case and administrative warrants in administrative
proceedings. And if one suspected of having committed a crime is entitled to a determination of the
probable cause against him, by a judge, why should one suspected of a violation of an administrative
nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final
finding of a violation, either by an executive or legislative officer or agency duly authorized for the
purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable
cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect
compliance of an order of contempt.
The (n) contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect
the power to deportation is valid only when, as already stated, there is already an order of deportation. To
carry out the order of deportation, the President obviously has the power to order the arrest of the
deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is
enough, as was true before the executive order of President Quirino, that a bond be required to insure the
appearance of the alien during the investigation, as was authorized in the executive order of President
Roxas.'
"Following the same trend of thought, this Court, in Morano vs. Vivo (L-22196, 30 June 1967, 20 SCRA
562; Phil. 1967-B, page 741), distinguished between administrative arrest in the execution of a final
deportation order and arrest as preliminary to further administrative proceedings. The Court remarked in
said case:
Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in the
execution of a final order of deportation issued in accordance with law. The constitutional limitation
contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to
prosecution or proceedings for a given offense or administrative action, not as a measure indispensable
to carry out a valid decision by a competent official, such as a legal order of deportation, issued by the
Commissioner of Immigration, in pursuance of a valid legislation'" (L-24576, pp. 161-162).
The foregoing doctrine was last reiterated in Ang, et al. versus Galang, etc. (L-21426, Oct. 22, 1975).
Under the American Constitution, the aforesaid terms include not only arrest but also invitations for police
interview or interrogation as well as stop-and-frisk measures. In the 1968 case of Terry versus Ohio, the
United States Supreme Court enunciated:
"* * * It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate
in a trip to the station house and prosecution for crime 'arrests' in traditional terminology. It must be
recognized that whenever a police officer accosts an individual and restrains his freedom to walk away,
he has 'seized' that person (392 U.S. 1, 16 88 S.C.T. 1868, 20 LED. 2d 889; 903 [1968] )."

32
That the aforesaid terms seizures and seized signify arrest was deliberately intended by the founding
fathers of the 1935 Constitution, which words are likewise employed in the 1973 Constitution, Delegate
Miguel Cuaderno categorically recounted:
"An amendment affecting the issuance of an order of arrest and search warrant, to the effect that in each
case the order must be supported by the testimony of the complainant and the witnesses he may
produce, made before the judge, and also an amendment providing that prisoners charged with capital
offenses shall be bailable before conviction unless the evidence of guilt is strong, were approved upon
the initiative of Delegate Francisco. It was the prevailing opinion among many delegates that some courts
had been rather easy in the issuance of orders of arrest or search warrants, and quite strict in the matter
of bail in cases where persons had been charged with capital offenses" (Cuaderno, The Framing of the
Philippine Constitution, p. 65, italics supplied).
Delegate Jose Aruego added:
"During the debates on the draft, Delegate Francisco proposed an amendment which was adopted by the
Convention, the amendment being the insertion of the words, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce. The idea in
the Francisco amendment was not new in the Philippines; for it was provided for in the Code of Criminal
Procedure of the Philippines. The dignification of the idea into a constitutional provision was zealously
insisted upon, in order to make the principle more sacred to the judges and to prosecuting officials. The
amendment was intended to be a remedy for the evils pointed out in the debates, caused by the issuance
of search warrants, many of which were in blank, upon mere affidavits on facts most of which were
generally found afterwards to be false" (Aruego, Framing of the Philippine Constitution, Vol. I, p. 160).
The term "judge" employed in both Constitutions cannot be so limited to "municipal judge" as to exclude
the judges of the Court of First Instance and Circuit Criminal Court (People vs. Manantan, 5 SCRA 684,
690-695). WE are not justified to create a distinction where the Constitution does not make any.
In general, "judge" is a term employed to designate a public officer selected to preside and to administer
the law in a court of justice (Ark. - School Dist. No. 18 vs. Grubbs Special School Dist., 43 S.W. 2d 765,
766, 184 Ark. 863, 48 CJS 946).
According to intent or context, the term "judge" may include an assistant judge (N.H. - City Bank vs.
Young, 43 N.H. 457); a county or court justice (Mo. State vs. O'Gorman, 75 Mo. 370); a justice of the
peace (N.Y. People vs. Mann97 N.Y. 530, 49 Am. R. 556).
The term "a judge", in Gen. St. C.47, Art. 1 & 22, providing that "a judge" may cause any house or
building to be searched for the protection of gambling tables, etc., is equivalent to "any judge"
and comprehends an entire class, and cannot, without disturbing its meaning, be restricted in its
applications to judges of county, city and police courts and therefore the judge of the Louisville Law and
equity court has authority to issue a warrant for such a search (Com. vs. Watzel, 2 S.W. 123, 125, 84 KY
537).
Admittedly, Section 99 of the Judiciary Act contains a repealing clause which provides: "All laws and
rulesinconsistent with the provisions of this Act are hereby repealed." The question may now be asked:
What is the nature of this repealing clause? It is certainly not an express repealing clause because it fails
to identify or designate the Act or Acts that are intended to be repealed (Sutherland, Statutory
Construction, [1934], Vol. 1, p. 467). Rather, it is a clause which predicates the intended repeal upon the
condition that a substantial and an irreconcilable conflict must be found in existing and prior Acts. Such
being the case, the presumption against implied repeals and the rule against strict construction regarding
implied repeals apply ex propio vigore; for repeals and amendments by implication are not favored
(Jalandoni vs. Andaya, L-23894, Jan. 24, 1974, 55 SCRA 261, 265-6; Villegas vs. Subido, L-31711, Sept.
30, 1971, 41 SCRA 190; Quimseng vs. Lachica, 2 SCRA 182). Indeed, the legislature is presumed to

33
know the existing laws; so that, if a repeal is intended, the proper step is to so express it with specificity
(Continental Insurance Co. vs. Simpson, 8 F [2d] 439; Webb vs. Bailey, 151 Ore. 2188, 51 P [2d]
832; State vs. Jackson, 120 W. Va. 521, 199 S.E. 876). The failure to add a specific repealing clause
indicates that the intent was not to repeal any existing law (Crawford, Construction of Statute, 1940 ed., p.
631), unless an irreconcilable inconsistency and repugnancy exist between the terms of the new and of
the old statutes (Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377). Here, there
is no such inconsistency.
To begin with, the two laws, although with a common objective, refer to different persons and different
methods applicable under different circumstances. Thus, while Section 87 of the Judiciary Act provides
that municipal judges and judges of city courts may also conduct preliminary investigation for any offense
alleged to have been committed within their respective municipalities and cities * * *; Section 37 of Act
1627 reads in part that such power of "every justice of the peace including the justice of Manila, * * * shall
not exclude the proper judge of the Court of First Instance * * * from exercising such jurisdiction."
WE should not, and cannot, adopt the theory of implied repeal except upon a clear and unequivocal
expression of the will of Congress, which is not manifest from the language of Section 99 of the Judiciary
Act, apart from the fact that Congress by itself alone had no power to amend the Constitution.
The opposite view likewise denies that the jurisdiction of our courts to conduct preliminary investigation
could be traced to the Constitution, adding that the Charter of Manila and other cities confer upon the
respective fiscals of said cities the power to conduct preliminary investigations.
The organic acts prior to the 1935 Constitution did not prohibit the conferment of such a power to conduct
preliminary examination or investigation on quasi-judicial officers like the city fiscals of chartered cities
(see the instructions of President McKinley to First Philippine Commission, the Philippine Bill of 1902,
Jones Law of 1916, and the Revised Administrative Code of 1917).
But the power thus granted to the Manila City Fiscals (and later to City Fiscals and City Attorneys of other
chartered cities) to conduct preliminary investigations did not and does not include the authority to issue
warrants of arrest and search warrants, which warrants the courts alone can issue then as now. The
constitutional guarantee against unreasonable searches and seizures under the 1935 Constitution
provides that only a judge can issue a search warrant or warrant of arrest after he has by himself
personally determined the existence of probable cause upon his examination under oath of the
complainant and his witnesses; although as ruled in one case, he may rely on the investigation conducted
by the fiscal or prosecutor (Amarga vs. Abbas, 98 Phil. 739, 741-42).
It is patent that under the 1935 Constitution, only the "judge" is directed to conduct a preliminary
examination for the issuance of the warrant of arrest by express constitutional conferment.
But the 1973 Constitution empowers the National Assembly to grant the power to issue search warrants
or warrants of arrest after conducting the necessary preliminary examination to "other responsible officer."
Until such a law is enacted by the National Assembly, only the judge can validly conduct a preliminary
examination for the issuance of a warrant of arrest or search warrant.
Even when the fiscal or prosecutor conducts the preliminary investigation, only the judge can validly issue
the warrant of arrest. This is confirmed by Section 6 of Rule 112 of the 1964 Revised Rules of Court,
which directs the judge to issue the warrant of arrest when he is "satisfied from the preliminary
examination conducted by him or by the investigating officer (referring to the fiscal or the municipal mayor

34
under Sec. 5) that the offense complained of has been committed and that there is reasonable ground to
believe that the accused has committed it, * * *."
Thus, the power of the city prosecutors to conduct preliminary examination and investigation (minus the
authority to issue warrants of arrest or search warrant) is purely statutory. On the other hand, the judge
derives his authority not only from the Rules of Court, but also - and originally - from the fundamental law
to which all other laws are subordinate. If an objection must be raised, it should be against the authority of
the fiscal to exercise such power of preliminary investigation, which, as has been stated, is merely
statutory. No less than the Constitution confers upon the judge the power to conduct such examination
and investigation.
The case of Albano vs. Alvarez (December 22, 1965, 15 SCRA 518) is authority for the proposition that
Sec. 13 of Rule 112 of the 1964 Revised Rules of Court contains an innovation, which requires that, when
the Court of First Instance itself conducts the preliminary investigation, it must not only conduct the
preliminary examination proper but the preliminary investigation as well since Section 13 commands the
Court of First Instance to conduct both the preliminary examination and investigation simultaneously (523524). Said Albano case does not negate, but recognizes the authority of the judge of the Court of First
Instance to conduct such preliminary investigation.
It is true that this COURT held expressly and impliedly that under the charters of the cities of Manila,
Bacolod and Cebu, the power to conduct preliminary investigation is exclusively lodged in the city
prosecutor (Sayo vs. Chief of Police, 80 Phil. 859, 868-869, May 12, 1948; Espiritu vs. De la Rosa, 45 OG
196; Montelibano vs. Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18 SCRA 280, 285-286,
Sept. 30, 1966). But the charters of the cities of Manila, Bacolod and Cebu do not contain any provision
making such grant of power to city prosecutors exclusive of the courts (Kapunan, Criminal Procedure, 3rd
Edition, 1960), which cannot be deprived of such authority to conduct preliminary examination because
said prerogative of the courts emanates from the Constitution itself. Unless the Constitution is amended,
the Judge cannot be divested of such a power, which is an essential element of the cardinal right of an
individual against unreasonable searches and seizures. If the present city charters conferred on city
fiscals or city prosecutors the power to issue warrants of arrest, it would be an unconstitutional grant of
power under the 1935 Constitution. As heretofore intimated, the present practice or rule of court
authorizing the judge to issue warrants of arrest based on the preliminary investigation conducted by the
city fiscal, seems to violate the 1935 Constitution, which requires the judge himself to conduct the
preliminary examination. Neither the judge nor the law can delegate such an authority to another public
officer without trenching upon this constitutional guarantee against unreasonable searches and seizures.
The theory that Courts of First Instance and Circuit Criminal Courts Judges cannot exercise the power of
preliminary examination and investigation, and that as a necessary consequence, they cannot also issue
warrants of arrest, obviously collides with the 1935 and 1973 Constitutions.
Moreover, the theory tolerates an unthinkable - because anomalous - situation wherein the Court of First
Instance and the Circuit Criminal Court must wait for prosecutors and courts inferior to them to conduct
the preliminary examination and/or to issue the needed warrants of arrest before they could effectively
exercise their power to try and decide the cases falling under their respective jurisdiction. This situation
would make the Courts of First Instance and Circuit Criminal Courts totally dependent upon state
prosecutors and municipal courts, which are inferior to them, for their proper functioning. The possibility
that the administration of criminal justice might stand still will not be very remote.

35
The two-fold purpose for which the Circuit Criminal Courts were created was to alleviate the burden of the
regular Courts of First Instance and accelerate the disposition of criminal cases filed therein (Osmea vs.
Secretary of Justice, supra; People vs. Gutierez, supra). Such being the admitted purpose, the power to
conduct preliminary examination must necessarily attach to the duties of a Circuit Criminal Court Judge;
for aside from being one of the instruments by which a case may be accelerated and disposed of, it is a
duty which truly lies within the scope of the office, essential to the accomplishment of the main purpose
for which the office was created (Sec. 3, Art. III, 1935 Constitution; Sec. 3, Art. IV, 1973 Constitution),
even if regarded as incidental and collateral, is germane to, and serves to promote the accomplishment of
the principal purpose (Lo Cham vs. Ocampo, 77 Phil. 635).
WE RULE that both Section 1(3), Article III of the 1935 Constitution and Section 3, Article IV of the 1973
Constitution provide the source of the power of all Judges, including Judges of the Court of First Instance,
the Circuit Criminal Courts, and other courts of equivalent rank, to conduct the examination to determine
probable cause before the issuance of the warrant of arrest and therefore sustain the proceedings
conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the
cases to the fiscal or other government prosecutor for the filing of the corresponding information.
II
It may be well to trace briefly the historical background of our law on criminal procedure.
During the Spanish regime, the rules on criminal procedure were found in the Provisional Law on Criminal
Procedure which accompanied the Spanish Penal Code. These two laws were published in the Official
Gazette in Manila on March 13 and 14, 1887 and became effective four (4) months thereafter (U.S. vs.
Tamparong, 31 Phil. 32-33; Francisco, Criminal Procedure, 1969 ed., p. 8).
While the Provisional Law on Criminal Procedure provided for a preliminary summary oral trial by the
justice of the peace or gobernadorcillo, it did not require any preliminary examination or investigation
before trial. The sumariowas abolished by General Order No. 58 (U.W. vs. Tamparong, supra;
Navarro, Criminal Procedure, 1960 ed., pp. 171, 174; Revilla, Vol. 2, Philippine Penal Code and
Procedure, 1930 ed., pp. 1134-35).
When the Philippines came under American Sovereignty, General Order No. 58 was promulgated by the
U.S. Military Governor in the exercise of his legislative powers as commander-in-chief of the occupation
army and took effect on April 13, 1900. General Order No. 58 was amended by Act No. 194 of August 10,
1901, the Philippine Bill of 1902, Act No. 590 of January 9, 1903, Act No. 1627 of July 1, 1907, the Jones
Law of 1916, Section 2474 of the Revised Administrative Code of 1917, Act No. 3042 of March 10, 1922,
and Act No. 4178 of December 5, 1934.
General Order No. 58 amended (Sec. 1) the Criminal Code of Procedure enforced during the Spanish
regime and vested in the magistrate "the authority to conduct preliminary investigation (Sec. 13) for the
issuance of the warrant of arrest" and authorized "a judge or a justice of the peace" to issue a search
warrant upon his determination of the existence of probable cause therefor "particularly describing the
place to be searched and the person or thing to be seized" (Secs. 95 and 97). The term "magistrate"
comprehended the Court of First Instance (Temporosa vs. Yatco, 79 Phil. 225, 226 [1947] ; Marcos vs.
Cruz, 68 Phil. 96, 104-107 [1939] ; People vs. Red, 55 Phil. 706, 710 [1931] ; People vs. Solon, 47 Phil.
443, 441 [1925] ; Navarro, Criminal Procedure, 1960 ed., 1973; Padilla, Criminal Procedure, 1965 ed., p.
270).
"A 'magistrate' is an 'officer having power to issue a warrant for the arrest of a person charged with a
public offense.' People vs. Swain, 90 P. 720, 722, 5 Cal. App. 421, citing Pen. Code, S807.

36
"A 'magistrate' is an officer having power to issue a warrant for the arrest of a person charged with the
commission of a crime. The following persons are magistrates: (1) the justices of the Supreme Court; (2)
the judges of the Circuit Court; (3) the county judges and justices of the peace; (4) all municipal officers
authorized to exercise the powers and perform the duties of a justice of the peace. Wallowa County vs.
Oakes, 78 P. 892, 46 Or. 33" (26 Words and Phrases, pp. 44, 45).
Act No. 194 of August 10, 1901 amended General Order No. 58 by empowering "every justice of the
peace * * * to make preliminary investigation of any crime alleged to have been committed within his
municipality, jurisdiction to hear and determine which is by law now vested in the judges of the Courts of
First Instance" (Italics supplied).
The obvious inference from the aforequoted provision of Act No. 194 is that before its passage, the justice
of the peace had no power to conduct preliminary investigation of any offense triable by the Court of First
Instance, which alone can conduct such preliminary investigation of a crime under its original jurisdiction
pursuant to General Order No. 58. But its enactment did not divest the Court of First Instance of such
authority.
In the 1939 case of Marcos, et al. vs. Cruz, the Supreme Court, through Justice Imperial, sustained the
power of the Court of First Instance to conduct preliminary investigations under Sections 13 and 14 of
General Order No. 58 (68 Phil. 96, 106-107), which was impliedly followed in the 1947 case of
Temporosa vs. Yatco, et al., supra.
While General Order No. 58 vested the authority in a magistrate, a generic term which includes judges of
the Courts of First Instance and justices of the peace; Section 1 of Act No. 194 is less categorical by
employing the clause "jurisdiction to hear and determine which is by law now vested in the judges of the
Courts of First Instance."
The Philippine Bill of 1902 in a similar ambiguous vein contained such authority when it merely provided
that the "Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and
exercise jurisdiction asheretofore provided and such additional jurisdiction as shall hereafter be
prescribed by the Government of said Islands, subject to the power of said Government to change the
practice and method of procedure. The municipal courts of said Islands shall possess and exercise
jurisdiction as heretofore provided by the Philippine Commission, subject in all matters to such alteration
and amendment as maybe hereafter enacted by law; ***" (Sec. 9, italics supplied).
Act No. 590 of January 9, 1903 further amended Act No. 194 by extending the power to conduct
preliminary investigation to the justice of the peace of the provincial capital or of the town wherein the
provincial jail is situated of crimes committed anywhere within the province but again utilized and
equivocal clause "jurisdiction to hear and determine which is by law now vested in the Courts of First
Instance; * * *" (Sec. 7, Act 590, italics supplied).
Act No. 1627 of July 1, 1907 had the virtue of greater clarity when it authorized expressly every justice of
the peace, including the justice of the peace of Manila, to "conduct preliminary investigation of all crimes
and offenses alleged to have been committed within his municipality and cognizable by Courts of First
Instance, but this shall not exclude the proper judge of the Court of First Instance or of a municipal court
fromexercising such jurisdiction. The justice of the peace of a capital or of a municipality in which the
provincial jail is located, when directed byan order from the judge of First Instance, shall have jurisdiction
to conduct investigation at the expense of the municipality wherein the crime or offense was committed,
although alleged to have been committed anywhere within the province, to issue orders of arrest, * * *"
(Sec. 37, Act No. 1627, italics supplied).

37
The Jones Law of 1916, like the Philippine Bill of 1902, merely provides "that the Supreme Court and the
Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore
provided and such additional jurisdiction as shall hereafter be prescribed by law" (Sec. 26, Jones Law).
Section 2474 of the Revised Administrative Code of 1917 re-affirms the power of the Court of First
Instance of Manila to conduct preliminary examination "Sec. 2474. Persons arrested to be promptly brought before a court - Preliminary examinations in
municipal court and Court of FirstInstance. - Everyperson arrested shall, without unnecessary delay, be
brought before the municipal court, or the Court of First Instance forpreliminary hearing, release on bail,
or trial. In cases triable in the municipal court the defendant shall not be entitled as of right to a
preliminary examination, except a summary one to enable the court to fix the bail, in any case where the
prosecution announces itself ready and is ready for trial within three days, not including Sundays, after
the request for an examination is presented. In cases triable only in the Court of FirstInstance the
defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the
city, after a dueinvestigation of the facts, shall have presented an information against him in proper form.
But the Court of First Instance may make suchsummary investigation into the case as it may deem
necessary to enable it to fix the bail or to determine whether the offense isbailable." (Italics supplied).
It is clear that both the Manila Court of First Instance and municipal court can conduct a preliminary
hearing or examination. Section 2474 aforequoted, adds, however, that the City Fiscal impliedly may
conduct such preliminary examination; because it provides that in "cases triable only in the Court of First
Instance the defendant shall not be entitled as of right to a preliminary examination in any case where the
fiscal of the city, after a due investigation of the facts, shall have presented an information against him in
proper form." It will be noted, however, that it is only after the City Fiscal has conducted a preliminary
examination that the accused ceases to "be entitled as of right" to a preliminary examination by the Judge
of the Court of First Instance who, however, retains inferentially the discretion to conduct another
preliminary investigation because the Court of First Instance Judge is not foreclosed by the preliminary
examination conducted by the City Fiscal. But, when the City Fiscal has not conducted any preliminary
examination, the Court of First Instance Judge himself certainly can proceed with such preliminary examination, which the defendant can demand as a matter of right.
Act No. 3042 of March 10, 1922, while amending Section 13 of General Order No. 58, re-states the power
of the magistrate to conduct the preliminary examination for the issuance of the warrant of arrest.
Act No. 4178 of December 5, 1934 further amended Section 13 of General Order No. 58 but still retained
the authority of the magistrate to conduct the preliminary examination. As heretofore stated, Sections 13
and 14 of General Order No. 58, as amended, were applied by the Supreme Court in Marcos, et al.
versus Cruz (68 Phil. 96, 99, 106-107).
Under the jurisprudence then or prior to the 1935 Constitution, the preliminary investigation before the
justice of the peace or municipal court consisted of two stages, namely, preliminary examination for the
issuance of the warrant of arrest where only the complainant and his witnesses are heard by the justice of
the peace; and the second stage where the accused and his witnesses are heard. The Judge of the
Court of First Instance conducts only the first stage, that is, preliminary examination for purposes of the
issuance of the warrant of arrest, to be followed by the actual trial (Marcos vs. Cruz, supra;
People vs. Moreno, 77 Phil. 548, 555 [1946]).
The basic source of the power of the Courts of First Instance to conduct preliminary examination or
investigation from May 14, 1935 to January 17, 1973, is paragraph 3 of Section 1 of Article III of the 1935
Constitution, which guarantees "the right of the people to be secure in their persons * * * against

38
unreasonable * * * seizures * * * and no warrants shall issue but upon probable cause, to be determined
by the judge after an examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing * * * the persons * * * to be seized." Construing the forgoing
constitutional right against unreasonable searches and seizures, the Supreme Court, through then Chief
Justice Ricardo Paras, pronounced that the determination of the existence of "probable cause must
depend upon the judgment and discretion of the judge * * * issuing the warrant. * * *. His conclusion as
to whether probable cause' existed or not is final and conclusive. If he is satisfied that 'probable cause'
exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney,
then his conclusion is sufficient upon which to issue a warrant of arrest. He may, however, if he is not
satisfied, call such witnesses as he may deem necessary before issuing the warrant. * * *. There is no
law which prohibits him from reaching the conclusion that `probable cause' exists from the statement of
the prosecuting attorney alone, or any other persons whose statement or affidavit is entitled to credit in
the opinion of the judge * * *. The preliminary investigation conducted by the petitioner (Provincial Fiscal)
under Republic Act No. 732 * * * does not, as correctly contended by the respondent Judge, dispense
with the latter's duty to exercise his judicial power of determining, before issuing the corresponding
warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such power in the
respondent judge who, however, may rely on the facts stated in the information filed after preliminary
investigation by the prosecuting attorney" (Amarga vs. Abbas, March 28, 1956, 98 Phil. 739, 741-742).
While the power to conduct preliminary examination may be delegated by law to government prosecutors,
only the judge can issue the warrant of arrest under the 1935 Constitution and prior thereto (Sayo, et
al. vs. Chief of Police, et al. 80 Phil. 859; Lino vs. Fugoso, 77 Phil. 933; Hashim vs. Boncan, 71 Phil.
216). The valid seizure of a person can only be executed through a lawful warrant of arrest. Arrest
without a warrant can only be legally effected by a police officer or private individual a) when the person
to be arrested has committed, is actually committing, or is about to commit an offense in his presence; b)
when an offense has in fact been committed, and he has reasonable ground to believe that the person to
be arrested has committed it; and c) when the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one confinement to another (Sec. 6, Rule 113,
1964 Revised Rules of Court).
In all other cases, there must be a valid warrant of arrest. When the seizure of a person is made without
a warrant of arrest or with a warrant of arrest which is not based on a determination by the judge of the
existence ofprobable cause, the arrest becomes unreasonable and therefore unconstitutional.
Sections 2 and 4 of Rule 108 of the 1940 Rules of Court expressly confer on the municipal or city judge,
the City Fiscal and the Judge of the Court of First Instance the power to conduct preliminary examination
or investigation.
On June 20, 1957, Republic Act No. 1700, otherwise known as the Anti-Subversion Law, was approved.
The proviso of Section 5 thereof expressly provides that the preliminary investigation of offenses defined
and penalized therein by prision mayor to death shall be conducted by the proper Court of First Instance.
This grant obviously is exclusive of the provincial or city fiscal or other government prosecutors whose
power to conduct preliminary investigation in all other cases is affirmed in the first clause of Section 5
thereof.
Sections 13 and 14 of the 1964 Revised Rules of Court re-state Sections 2 and 4 of Rule 108 of the 1940
Rules of Court.

39
As aforestated, aside from the challenged Sections 3 and 6 of Republic Act No. 5179 creating the Circuit
Criminal Courts, Republic Act 5180 was approved on September 8, 1967, which affirms the prerogative of
the Courts of First Instance to conduct preliminary investigation of offenses punishable by said courts.
Presidential Decrees Nos. 77 and 911 promulgated respectively on December 6, 1972 and March 23,
1976, amending Republic Act No. 5180, did not modify the opening clause of Section 1 of said Republic
Act 5180 affirming the power of the Court of First Instance to conduct preliminary investigation in
accordance with law and the Rules of Court.
Section 234 of the 1971 Revised Election Code, otherwise known as Republic Act No. 6388, vests in the
Court of First Instance "exclusive original jurisdiction to make preliminary investigations, issue warrants of
arrest and try and decide any criminal case or proceeding for violation of" the Election Law. This
provision was a reiteration of the previous election laws (Act No. 1582 of 1907; Com. Act No. 357 of
1938; and Republic Act No. 180 of 1947, as amended).
After the ratification of the 1973 Constitution on January 17, 1973, the source of the authority of the judge
to conduct preliminary examination for purposes of issuing a warrant of arrest, is still the Constitution, this
time the 1973 Constitution, which likewise guarantees "the right of the people to be secure in their
persons * * * against unreasonable * * * seizures for whatever nature and for any purpose * * * and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing * * * the
persons * * * to be seized" (Sec. 3 of Art. IV, 1973 Constitution). The 1973 Constitution, instead of
employing the generic term warrants to comprehend both search warrants and warrants of arrest, as did
the 1935 Constitution, expressly specifies "search warrants or warrants of arrest." The purpose of such
specification was apparently to clarify the doubt raised by the dissenting opinion of Mr. Justice
Montemayor in the Amarga case, supra, that the 1935 Constitution merely guarantees against
unreasonable searches but not against unreasonable arrests, despite the fact that the constitutional
guarantee expressly affirms "the right of the people to be secure in their persons * * * against
unreasonable * * * seizures * * * and no warrant shall issue but upon probable cause, to be determined by
the judge * * * particularly describing * * * the persons * * * to be seized" (Par. 3, Sec. 1, Art. III, 1935
Constitution).
In passing, the dissent of Justice Montemayor in the Amarga case seems to deny equal, if not greater,
importance to individual freedom from illegal arrest or arbitrary detention vis-a-vis property rights and right
against self-incrimination. It will also likewise be noted that the 1973 Constitution also authorizes the lawmaking authority to empower other responsible officers to conduct such preliminary examination for
purposes of the issuance of a warrant of arrest. As enunciated in the Amarga case and in U.S. versus
Ocampo (18 Phil. 1, 41-42), the government prosecutors may be authorized to conduct such preliminary
examination and their determination of the existence of probable cause may be relied upon by the judge,
who may, as a consequence, issue the warrant of arrest; although the judge himself is not precluded from
conducting his own preliminary examination despite the conclusion of the prosecuting attorney as to the
existence or non-existence of probable cause.
III
1. The challenged order of July 6, 1971 issued by the respondent Judge in G.R. No. L-34038 (Collector
of Customs, etc. vs. Hon. Onofre Villaluz, et al.) dismissed the criminal complaint filed by petitioners
therein against private respondent with prejudice, obviously meaning that the case may not be re-filed

40
without exposing the accused to double jeopardy. The respondent Judge seriously erred in so issuing
said order, contravening as it does a basic legal principle on double jeopardy, and committing thereby a
grave abuse of discretion. The constitutional right against double jeopardy exists, not after the first
preliminary examination of investigation, but only after the first trial which results either in conviction or
acquittal or in the dismissal or termination of the case without the express consent of the accused by a
court of competent jurisdiction upon a valid complaint or information and after the accused had pleaded to
the charge (Sec. 9, Rule 117, Revised Rules of Court; Taladuavs. Ochotorena, et al., L-25595, February
15, 1974; Republic vs. Agoncillo, L-27257, August 31, 1971; 40 SCRA 579; People vs. Obsania, L-24447,
June 29, 1968, 23 SCRA 1249; People vs. Ylagan, 58 Phil. 851).
As correctly stated by the Solicitor General, petitioner's counsel, "dismissal at preliminary investigation is
never with prejudice. Re-filing of the same is allowed if evidence has become sufficient to warrant
conviction of private respondent." There has been no deviation from such established jurisprudence
exemplified in People vs.Bagsican (6 SCRA 400), wherein the Court held that "the finding in the
preliminaryinvestigation that no prima facie case existed against the accused does not bar subsequent
prosecution and conviction. - Such finding isnot final acquittal as would preclude further proceedings"
(italics supplied).
2. Aggravating his grave mistake and misapprehension of the law, respondent Judge also directed
through the same order the return of the articles allegedly seized from the person of respondent
Makapugay. This portion of the questioned order is fraught with undesirable consequences.
As stated heretofore, the dismissal of a case, even with prejudice, during the stage of preliminary
investigation does not bar subsequent prosecution and conviction if the evidence warrants the re-filing of
the same. But with the challenged order commanding the return of the articles subject matter of the
complaint, the re-filing of the same becomes next to impossible. For the enforcement of such order would
virtually deprive herein petitioner Collector of Customs of the evidence indispensable to a successful
prosecution of the case against the private respondent. Worse, the order nullified the power of seizure of
the customs official.
Respondent Judge ignored the established principle that from the moment imported goods are actually in
the possession or control of the Customs authorities, even if no warrant of seizure had previously been
issued by the Collector of Customs in connection with seizure and forfeiture proceedings, the Bureau of
Customs acquires exclusive jurisdiction over such imported goods for the purpose of enforcing the
Customs laws, subject to an appeal only to the Court of Tax Appeals and to final review by the Supreme
Court (Sections 2205 and 2303, Tariff and Customs Code; Papa, et al. vs. Mago, et al., Feb. 28, 1968, 22
SCRA 857; Virata, et al. vs. Aquino, et al., Sept. 30, 1973, 53 SCRA, 24; see also Vierneza vs.
Commissioner, July 30, 1968, 24 SCRA 394; Farm Implement & Machinery vs. Commissioner, August 30,
1968, 24 SCRA 905; Lazatin vs. Commissioner, et al., July 30, 1969, 28 SCRA 1016; Asaali, et al. vs.
Commissioner, December 16, 1968, 26 SCRA 382; Sare Enterprises vs. Commissioner, Aug. 28, 1969,
29 SCRA 112; Geotina, etc. vs. Court of Tax Appeals, et al., August 30, 1971, 40 SCRA 362;
Commissioner vs. Court of Tax Appeals, et al., January 31, 1972; Lopez vs. Commissioner, et al.,
January 30, 1971, 37 SCRA 327; Geotina vs. Broadway, etc., et al., January 30, 1971, 37 SCRA 410;
Auyong Hianvs. Court of Tax Appeals, et al., September 12, 1974, 59 SCRA 110; and Pacis, et al. vs.
Pamaran, etc., et al., March 15, 1974, 56 SCRA 16). Such exclusive jurisdiction precludes the Court of
First Instance as well as the Circuit Criminal Court from assuming cognizance of the subject matter
(Enrile, et al., vs. Venuya, et al., January 30, 1971, 37 SCRA 381) and divests such courts of the
prerogative to replevin properties subject to seizure and forfeiture proceedings for violation of the Tariff
and Customs Code (Diosamito, et al. vs. Balanque, et al., July 28, 1969, 28 SCRA 836; Seeris vs. Frias,

41
June 10, 1971, 39 SCRA 533); because proceedings for the forfeiture of goods illegally imported are not
criminal in nature since they do not result in the conviction of the wrongdoer nor in the imposition upon
him of a penalty (Lazatin vs. Commissioner, et al., July 30, 1969, 28 SCRA 1016).
Respondent Judge claims that the pendency of a seizure proceeding was never brought to his attention
(p. 038, rec.) and that he could not have foreseen the possibility that petitioner would be instituting
seizure proceedings * * * and besides, it is understood that the order of the court commanding the release
of the subject articles was on a premise that herein petitioner was not holding or withholding the same for
some other lawful reasons (p. 039, rec.).
The questioned order of respondent Judge is unqualified and contains no intimation that the "release * * *
was on a premise that herein petitioner was not holding or withholding the same for some other lawful
reason." On the contrary, the tenor of the order is so absolute and so emphatic that it really leaves no
alternative for petitioner Collector of Customs except to return the articles.
The records of the case, moreover, reveal that a report of seizure (p. 14, rec.) and a warrant of seizure
and detention (p. 15, rec.) were made by petitioner Collector of Customs on June 30, 1971 and on July 9,
1971 respectively. It is patent that respondent Judge knew actually of the existence at least of the report
of seizure of June 30, 1971, which is six days prior to his order of dismissal dated July 6, 1971. He
should have anticipated that a warrant of seizure and detention will logically be issued as in fact it was
issued on July 9, 1971, because it was the petitioner Collector of Customs who filed the criminal
complaint directly with him on July 1, 1971. Respondent Judge chose to ignore the presence of the
report of seizure dated June 30, 1971, six days before his order of dismissal and the filing of the criminal
complaint on July 1, 1971. Prudence should have counselled him, so as not to frustrate the petitioner
Collector of Customs in enforcing the tariff and customs laws, against ordering the release of the seized
articles without first ascertaining from the petitioner Collector of Customs whether the latter intended to
institute or had instituted seizure proceedings.
As aptly expressed by Mr. Justice Barredo in his Concurring Opinion in People vs. Gutierez, supra, "It is
not enough that a judge trusts himself or can be trusted as capable of acting in good faith, it is equally
important that no circumstance attendant to the proceedings should mar that quality of trustworthiness."
We have enjoined judges to apply the law as interpreted by the Supreme Court and not to dispose of a
case according to their personal views (Albert vs. Court of First Instance, 23 SCRA 948).
IV
In G.R. No. L-36376 (Enriquez, et al. vs. Hon. Onofre Villaluz, et al.), the arbitrary denials displayed by
respondent Judge of motions presented before him likewise invite some cautionary reminders from this
Court.
In this case, petitioners were given an unreasonable period of one (1) day within which to elevate the
matter before this Tribunal. But considering the novelty of the issue, a grant of twenty-four hours to
prepare a petition for certiorari is a virtual denial of the motion. And petitioners' motion for an extension of
at least one (1) day was peremptorily brushed aside by respondent Judge with one single word DENIED.
The fact that petitioners succeeded in bringing the matter before the Supreme Court within the constricted
period of time granted them is beside the point. More important is the consideration by this Court of the
dangers posed by respondent Judge's peremptory denial of a reasonable time.
Indeed, it is commendable to see judges hasten the disposition of cases pending before them. But more
commendable would be for judges to contribute their share in maintaining the unswerving faith of litigants

42
in the courts of justice. WE once again stress that "One important judicial norm is that a judge's official
conduct should be free from appearance of impropriety" (Luque vs. Kayanan, 29 SCRA 165).
V
But while we sustain the power of the Circuit Criminal Courts to conduct preliminary examination (p. 36),
pursuant to OUR constitutional power of administrative supervision over all courts (Sec. 6, Art. X, 1973
Constitution) as a matter of policy, WE enjoin the respondent Judge and other Circuit Criminal Court
Judges to concentrate on hearing and deciding criminal cases filed before their courts (see Mateo vs.
Villaluz, 50 SCRA 18, 28-29, March 31, 1973). The primary purpose of the creation of the Circuit Criminal
Courts in addition to the existing Courts of First Instance, as above intimated, is to mitigate the case load
of the Courts of First Instance as well as to expedite the disposition of criminal cases involving serious
offenses specified in Section 1 of Republic Act 5179, as amended. Circuit Criminal Judges therefore,
should not encumber themselves with the preliminary examination and investigation of criminal
complaints, which they should refer to the municipal judge or provincial or city fiscal, who in turn can
utilize the assistance of the state prosecutor to conduct such preliminary examination and investigation.
Or the Judge of the Circuit Criminal Court can directly request the Secretary of Justice to assign a state
prosecutor for the same purpose (Sec. 3, Republic Act No. 5184).
Moreover, it seems that respondent Judge does not have adequate time to hear and dispose of the 34
criminal cases with detention prisoners pending in his sala, aside from the 479 pending cases of voluntary
submission by drug addicts, as of January 31, 1975) (A.M. No. 230-CCC, Item 42, Agenda of March 31,
1975), as revealed by his letter dated February 26, 1975, wherein he requested the Supreme Court to
renew the temporary detail in his sala of Municipal Judge Hermenegildo C. Cruz of Mandaluyong, Rizal,
to assist him. This significant fact should further dissuade him from actively conducting the preliminary
investigation of criminal cases directly filed with him.
Furthermore, Judges of the Circuit Criminal Courts whose dockets permit, may be assigned by the
Supreme Court for a period not exceeding 6 months, unless with their consent, to assist Judges of regular
Courts of First Instance with clogged dockets (Sec. 5 [3], Art. X, 1973 Constitution).
WHEREFORE , IN G.R. NOS. L-34243, 36376, 38688 AND 39525, THE PETITIONS ARE HEREBY
DISMISSED AND THE WRITS OF PRELIMINARY INJUNCTION AND/OR RESTRAINING ORDERS
ISSUED THEREIN ARE HEREBY LIFTED; IN G.R. NO. L-40031, THE PETITION IS HEREBY
DISMISSED; AND IN G.R. NO. L34038, THE ORDER OF RESPONDENT JUDGE DATED JULY 6, 1971
IS HEREBY SET ASIDE AS NULL AND VOID INSOFAR AS THE SAME DISMISSED THE CRIMINAL
CASE WITH PREJUDICE AND INSOFAR AS THE SAME DIRECTED THE RETURN TO PRIVATE
RESPONDENT THEREIN OF THE ARTICLES SEIZED FROM HIM WHICH ARE NOW SUBJECT OF
SEIZURE PROCEEDINGS BEFORE THE CUSTOMS AUTHORITIES, AND THE WRIT OF
PRELIMINARY INJUNCTION ISSUED THEREIN IS HEREBY MADE PERMANENT. NO COSTS.
Castro, C.J., Teehankee, Antonio, Esguerra, Muoz Palma, Aquino, and Martin, JJ., concur.
Fernando, J., concurs and submits a brief opinion.
Barredo, J., concurs in a separate opinion.
CONCURRING OPINION
FERNANDO, J.:
The opinion of the Court, both thorough and comprehensive, penned by Justice Makasiar, is impressive
for its analytical skill and scholarly attributes. On the whole then, especially so where reference is made to
our previous decisions, there is no impediment to full concurrence. This is particularly true where it
concerns the ruling announced by this Court, i.e., "that both Section 1(3), Article III of the 1935

43
Constitution and Section 3, Article IV of the 1973 Constitution provide the source of the power of all
Judges, including Judges of the Court of First Instance, the Circuit Criminal Courts, and other courts of
equivalent rank, to conduct the examination to determine probable cause before the issuance of the
warrant of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the
issuance of the warrants of arrest and his referral of the cases to the fiscal or other government
[1]
prosecutor for the filing of the corresponding information." At that, there is still need, it seems to me, for
a few words not only to set forth the extent of my agreement with my brethren but also to indicate what for
me are the precise limits of our holding. The full and exhaustive treatment of the specific issue dealing
with the power of the circuit criminal courts to conduct preliminary examination, with historical and textual
allusions to the previous judicial pronouncements and comparable statutory provisions, certainly a virtue
to be commended, may for those not sufficiently discerning, yield implications which, for me, go further
than is intended by us. It is my understanding then that the decision reached is at most an affirmation that
the present Constitution, as did the 1935 Constitution, confers the power to conduct preliminary
examination preparatory to issuing a warrant of arrest, to a circuit criminal court judge. Even then,
however, he should for sound policy reasons curb any eagerness or propensity to make use of such
competence.
1. To repeat, it is solely the first stage in the criminal process that may lead to the apprehension of the
accused that has been passed upon by this Court. It has not considered the second stage, that of
preliminary investigation proper, one of equal significance. As far back as 1910, its importance was
[2]
stressed in United States vs. Grant and Kennedy. Thus: "The object or purpose of a preliminary
investigation, or a previous inquiry of some kind, before an accused person is placed upon trial, is to
secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from an
open and public accusation of crime, from the trouble, expense, and anxiety of a public trial, and also to
[3]
protect the State from useless and expensive trials." It is of the essence then that the accused should
be heard. There are overtones in the opinion of the Court susceptible to being misinterpreted in this
regard, if it be assumed that upon the termination of the preliminary examination the arraignment and trial
could then proceed. I would dissociate myself from such a view. I am gratified therefore that it is made
[4]
explicit therein that our ruling is limited to the power of a judge under the Circuit Criminal Court Act to
conduct a preliminary examination. As to his competence regarding a preliminary investigation, it is my
understanding that the question has been left open.
2. Respondent Judge was likewise admonished "to concentrate on hearing and deciding criminal cases
[5]
filed before their courts (see Mateo vs. Villaluz, 50 SCRA 18, 28-29, March 31, 1973)." That is as it
should be. It is well that it is so. The occasion for its exercise should be minimized. That is the teaching of
Mateo v. Villaluz, the same respondent Judge in these petitions. The facts could be differentiated, but the
principle announced holds true. The load to be shouldered by a trial judge is heavy enough for him to
attend to matters which could be looked after by municipal judges. So this excerpt from Mateo would
indicate: To avoid any further controversies of this nature, lower court judges are well-advised to limit
themselves to the task of adjudication and to leave to others the role of notarizing declarations. The less
an occupant of the bench fritters away his time and energy in tasks [that could be left to other hands], the
less the danger of his being a participant in any event that might lend itself to the interpretation that his
impartiality has been compromised. There is much to be said for displaying zeal and eagerness in
stamping out criminality, but that role is hardly fit for a judge who must bide his time until the case is
before him. He must ever be on guard lest what is done by him, even from the best of motives, may be
thought of as eroding that objectivity and sobriety which are the hallmarks of judicial conduct. Thus should
[6]
he attend to the performance of the sacred trust that is his." For me, the fact that a judge had listened

44
to testimony damaging to a prospective accused, without his being given the opportunity to refute the
same, may lead to a subconscious prejudice difficult to erase at the stage of trial.
[1]

Opinion, I (36).
18 Phil. 122.
[3]
Ibid, 147. The United States vs. Grant decision was cited with approval in United States vs. Laban, 21
Phil. 297 (1912); United States vs. Carlos, 21 Phil. 553 (1911); United States vs. Go Chanco, 23 Phil. 641
(1912); United States vs. Ipil, 27 Phil. 530 (1914); United States vs. Remegio, 37 Phil. 599 (1918); United
States vs. Alabot, 38 Phil. 698 (1918); Uy Kheytin vs. Villareal, 42 Phil. 886 (1920); People vs. Solon, 47
Phil. 443 (1925); People vs. Villegas, 55 Phil. 567 (1931); People vs. Carigan, 61 Phil. 416
(1935); People vs. Castillo, 76 Phil. 72 (1946);People vs. Dizon, 76 Phil. 265 (1946); People vs. Zapanta,
79 Phil. 308 (1947); Sayo vs. Chief of Police of Manila,80 Phil. 859 (1948); Bustos vs. Lucero, 81 Phil.
640 (1948); Lozada vs. Hernandez, 92 Phil. 1051 (1953);Rodriguez vs. Arellano, 96 Phil. 954
(1955); Santos, Jr. vs. Flores, L-18251, Aug. 31, 1952, 5 SCRA 1136;Molinyawe vs. Flores, L-18256,
Aug. 31, 1962, 5 SCRA 1137; People vs. Figueroa, L-24273, April 30, 1969, 27 SCRA 1239; Sausi vs.
Querubin, L-24122, Jan. 29, 1975, 62 SCRA 154.
[4]
Republic Act No. 5179 (1967).
[5]
Opinion, V.
[6]
L-34756-59, March 31, 1973, 50 SCRA 18, 28-29.
[2]

CONCURRING
BARREDO,J.:
I concur in the result of the judgment in these cases, for although the main opinion sustains the authority
of Circuit Criminal Courts to conduct preliminary investigations, it strictly ordains, however, that "as a
matter of policy (sic)We enjoin the respondent Judge and other Circuit Criminal Court Judges to
concentrate on hearing and deciding criminal cases filed before their courts." With such an imperious
mandate, I am satisfied that Circuit Criminal Courts will not anymore do what I am fully convinced they are
not legally permitted to do. I am certain no Criminal Court Judge will dare deviate from the "policy"
announced in the main opinion, which, of course, I say is the policy of Republic Act 5179 itself. Indeed,
my uncompromising position is that it is the policy of the law itself, rather than that of this Court alone as
the main opinion would seem to imply, that Circuit Criminal Courts should strictly confine themselves to
merely trying and deciding the cases assigned to them, and I have always insisted that it should be on the
basis of that very policy of the law itself informed in public interest that this Court should construe the
statutory provision here in issue, Section 1 of Republic Act 5179 which provides as follows:
"In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is
hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First
Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction
of the latter:
'a. Crimes committed by public officers, crimes against persons and crimes against property as defined
and penalized under the Revised Penal Code, whether simple or complexed with other crimes;
'b. Violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, x x
x;
' c. Violations of Sections 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175
and 345 of the National Internal Revenue Code.'"

45
Thus, the judgment of the Court in these cases will after all effectively effectuate what I maintain is the
spirit of the Act, notwithstanding the considerations predicating the main opinion which, with due respect
to my learned brethren in majority, I find it impossible to agree with. And so, I can give my assent to the
judgment in these cases without my having to sacrifice my conviction regarding the question of statutory
construction herein involved, which I am explaining in this separate opinion. Frankly, I will never be able
to comprehend why the majority can give the above provision a construction contrary to what plainly
appears to be policy that underlies it, only for them to just the same "enjoin" all Circuit Criminal Courts "as
a matter of policy," (of the Court) that they should not conduct preliminary investigations, which I say the
statute, as a matter of policy, never intended to allow them to do anyway.
Notwithstanding the scholarly and extended main opinion. I am not persuaded that the legislature ever
intended to confer upon Circuit Criminal Courts the power to conduct preliminary investigations. Not only
the specific words of the above provision, but the development of the law on preliminary investigations
and the circumstances obtaining at the Republic Act 5 179 was enacted point unmistakably, in my
considered opinion, to this conclusion.
There are already two earlier cases in which this Court had to dwell on the extent of the jurisdiction of the
circuit criminal courts. In both of them, the approach was restrictive. Way back in 1968, in the case of
People vs. Paderna, 22 SCRA 273, the Court was confronted with the question of whether or not the
mere fact that under Section 1 (c) of Republic Act 5179, the organic act of the circuit criminal courts,
mentions violations of Section 174 of the National Internal Revenue Code to be among the cases under
the jurisdiction of said courts, is enough justification for disregarding the penalty provided in the Revenue
Code of fine of not less than P50 nor more than 200 and imprisonment of not less than 5 nor more than
30 days when the value of the cigarettes involved does not exceed 500, which ordinarily would make
such violation fall within the original jurisdiction of the City Court of La Carlota City and considering such
violations to be within the jurisdiction of the corresponding Circuit Criminal Court. The Court, thru Justice
Fred Ruiz Castro, resolved the problem this wise:
"The jurisdiction of the circuit criminal courts is thus dependent not only on the type of cases but also on
the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and original
jurisdiction of the city court, it cannot, even if it involves a violation of Section 174 of the Tax Code, be
taken cognizance of by the circuit criminal courts the jurisdiction of which is concurrent with that of courts
of first instance in criminal cases where the latter's jurisdiction is original and exclusive." (At p. 279.)
Almost four years later, in Paraguya vs. Tiro, 41 SCRA 137, the issue was whether or not a case of
indirect bribery, a crime committed by a public officer included in Section l(a) of the Act, but punishable
under Article 211 of the Revised Penal Code with arresto mayor, suspension and public censure,
penalties which are imposable by the city of municipal courts concurrently with the courts of first instance,
may be considered as within the jurisdiction of the Circuit Criminal Courts. We held that the fact alone that
the crime involved was one committed by a public officer did not suffice to place the case within the
jurisdiction of said courts. Reiterating the predicate of adherence to the letter of the statute adopted in
Parenda, supra, Justice J.B.L. Reyes, emphasized the reason therefor thus:
"In fact, the intention of the legislature to bestow unto these special criminal courts limited jurisdiction is
clear not only from the provision of the law itself; it was so stated that this limited jurisdiction of the circuit
courts would enable them to act with dispatch on the cases cognizable by said tribunals. And, this is
precisely the purpose for which the circuit criminal courts were created - to contribute to the speedy
resolution of criminal cases and help curb the progression of criminality in the country (Explanatory Note
to Senate Bill No. 388, which became Republic Act No. 5179)" (At p. 142.)

46
In the cases at bar, it is admitted in the main opinion that because "the primary purpose of the creation of
the Circuit Criminal Courts in addition to the existing Courts of First Instance, as above intimated, is to
expedite the disposition of criminal cases involving serious offenses specified in Section 1 of Republic Act
5179, . . . Circuit Criminal Judges, therefore, should not encumber themselves with attending to the
preliminary examination and investigation of criminal complaints, which they should refer to the Provincial
or City Fiscals, who, in turn can utilize the assistance of the state prosecutor to conduct the requisite
preliminary examination and investigation. Or the Judge of the Circuit Criminal Court can directly request
the Secretary of Justice to assign a state prosecutor for the same purpose." What is more, as if to
predicate such observations on actuality and project them in the context of what is happening in the very
court of respondent judge, the main opinion invites attention to the number of pending cases and matters
therein which compelled respondent judge, according to the opinion, to seek from this Court the detail of
a municipal judge to assist him. It further points out that under Section 5(3) Article X of the Constitution,
Criminal Court Judges may be temporarily assigned by the Supreme Court to other stations, provided
that, without the consent of the judges concerned, such assignment may not last longer than six
[1]
months. And to these very apt observations, it may be added that unlike in the regular courts of first
instance, in circuit criminal courts "the trial of cases ... once commenced, shall be continuous until
terminated and the judgment shall be rendered within thirty days from the time the case is submitted for
decision." (Sec. 6, R.A. 5179).
To my mind, all these considerations were precisely what the Congress had in mind when it enacted the
law creating the circuit criminal courts. As may be seen, all of these considerations point to the necessity
of freeing the said courts from all functions other than "to try and decide" the cases enumerated in the
Act. It is inconceivable that with said considerations in view, Congress could have meant by omitting
mention of preliminary investigations in the statute that it should nevertheless be construed in the sense
of "encumbering", to borrow the language of the main opinion, the circuit criminal courts with the burden
of "attending to preliminary examination and investigation of criminal complaints," which the main opinion
emphasizes and the legislature must be presumed to have known can be better performed by the
multitudinous other offices in the prosecution staff government already referred to above.
It is important to note that the conferment in the Judiciary Act of jurisdiction upon the regular courts of first
instance is worded thus:
"SECTION 44. Original jurisdiction. Courts of First Instance shall have original jurisdiction:
(a) In all civil actions in which the subject of the litigation is not capable of pecuniary estimation;
(b) In all civil actions which involve the title to or possession of real property, or any interest therein, or the
legality of any tax, impost or assessment, except actions of forcible entry into and detainer on lands or
buildings, original jurisdiction of which is conferred by this Act upon city and municipal courts;
(c) In all cases in which the demand, exclusive of interest, or the value of property in controversy,
amounts to more than ten thousand pesos; (RA Nos. 2613 & 3828.)
(d) In all actions in admiralty and maritime jurisdiction, irrespective of the value of the property in
controversy or the amount of the demand;
(e) In all matters of probate, both of testate and intestate estates, appointment of guardians, (See also
Section 90, and note thereof.) trustees and receivers, and in all actions for annulment of marriage, and in
all such special cases and proceedings as are not otherwise provided for;

47
(f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months, or
a fine of more than two hundred pesos;
(g) Over all crimes and offenses committed on the high seas or beyond the jurisdiction of any country, or
within any of the navigable waters of the Philippines, on board a ship or watercraft of any kind registered
or licensed in the Philippines in accordance with the laws thereof. The jurisdiction herein conferred may
be exercised by the Court of First Instance in any province into which the ship or watercraft upon which
the crime or offense was committed shall come after the commission thereof: Provided, That the court
first lawfully taking cognizance thereof shall have jurisdiction of the same to the exclusion of all other
courts in the Philippines, and
(h) Said court and their judges, or any of them, shall have the power to issue writ of
injunction, mandamus, certiorari, prohibition quo warranto and habeas corpus in their respective
provinces districts, in the manner provided in the Rules of Court."
Significantly, unlike Section 1 ofRepublic Act 5179, this provision does not say that the Courts of First
Instance shall "try and decide" the cases therein enumerated. Rather, it simply says they shall have
original jurisdiction "in" and "over" the respective cases mentioned. In other words, Section 1 of Republic
Act 5179 does not grant the circuit criminal courts jurisdiction "in" or "over" the cases listed, but, as may
be plainly seen in the above-quoted tenor of its pertinent provision, only "the limited jurisdiction ... to try
and decide" them. To my mind, this difference in phraseology must have been intentional in order to
emphasize the restricted and limited prerogatives of Circuit Criminal Courts, not only as to the nature of
the cases that can be filed with them but also as to the extent of their functions and powers relative to
said cases.
I maintain that consonant with the need to make of the Circuit Criminal Courts the courts of special and
limited jurisdiction designed to attend with utmost expeditiousness to the cases assigned to them, as
undoubtedly the law intends them to be, Section 1 of the Act should be construed, even in case of doubt,
in the sense not only that the jurisdiction of said courts is limited to the cases which they may take
cognizance of, but also in that any other work not strictly part of the functions to "try and decide" said
cases, is not contemplated to be performed by them.
It is a familiar rule that the jurisdiction of a court, may not be deemed granted by mere implication, unless
perhaps in instances when this is indubitably clear. Whenever there is reason to doubt, as in the case
before Us, precisely because of the considerations expounded in the main opinion as to why, as a matter
or Court's policy, at least, the circuit criminal courts should retrain from holding preliminary investigations
the rule, as ' kn .J is to deny the existence of power. In this connection, it sh0 be borne in mind that the
power to conduct preliminary 'investigations has never been deemed as a mere incidental prerogative of
any court. It exists only when duly granted.
It should be noted from the provisions of Section 44 of the Judiciary Act aforequoted that even the
authority of the regular courts of first instance to grant writs of
injunction, mandamus, certiorari, prohibition, quo warranto andhabeas corpus, which by their nature could
reasonably be deemed inferable from the grant of general jurisdiction, had still to be granted expressly to
said courts, and only within their respective provinces and districts. And this Court has been very
restrictive in construing this particular grant of jurisdiction. (See Director of Forestry vs. Ruiz,L-24882,
April 30, 1971, 38 SCRA 559, and cases therein cited.) To repeat, such authority would seem to be
implicit from the grant of general jurisdiction, and yet We always insist that it should be specifically

48
conferred. Now, is there anything in the conduct of preliminary investigations that makes it more inherent
or inseparable from the expressed power "to try and decide" that necessarily, We must consider the same
as included in said power or as something that must indispensably be added thereto, such that the
authority therefor need not be spelled out in black and white? Withal, if in the case of inferior courts,
which everyone knows have always conducted preliminary investigations since the enactment of Act 194
in 1901, the Judiciary Act had to expressly provide for the grant of such authority to them, what special
reason is there why the conferment upon circuit criminal courts of the faculty to "try and decide" certain
types of criminal cases should be deemed as necessarily including the authority to conduct preliminary
investigations related thereto, when according to what the main opinion emphasizes, such function can
be better performed by the prosecution staff of the government?
The main opinion holds that it "is plain and evident from Sections 3 and 6 of their organic act, Republic
Act 5179" that circuit criminal courts "have the same powers and functions as those conferred upon
regular Courts of First Instance necessary to effectively exercise (their) special and limited jurisdiction."
But I am afraid this reasoning ignores that "the powers and Actions (of) the regular Courts of First
Instance" conferred upon the circuit criminal courts are only those "necessary (for them) to effectively
exercise (their) special and limited jurisdiction " and the issue precisely is what is the extent of that special
and limited jurisdiction. As I have already pointed out, that "special and limited jurisdiction" is "try and
decide" the cases enumerated and this power does not have to be accompanied, whether by logical
implication or by the reasons behind the organization of the courts, by the authority to conduct preliminary
investigations. I dare say, in connection with the provisions of Section 3 of the Act, that the provisions of
laws and Rules of Court, if any, granting jurisdiction to regular courts of first instance to conduct
preliminary investigations are inconsistent with the provisions of the Act, considering that these latter
provisions contemplate circuit criminal courts which should not undertake the functions of conducting
preliminary investigations, as found factually by the main opinion, albeit surprisingly the majority would
give weight to such factual finding only to serve as basis for a policy only of the Court, instead of utilizing
the same as premise for the proper construction of the Act in order that such policy may be legally
effectuated, since it is indeed the policy underlying the law itself. And besides, a careful reading of
Section 3 should make it clear to everyone that its phraseology studiously refers not to all the powers of
the judges of the Courts of First Instance, but only to "the provisions of the laws and the Rules of Court
relative to the Judges of the Courts of First Instance," meaning their qualifications, salaries,
transfer etc. and to their powers and prerogatives in "the trial, and disposition and appeal of criminal
cases" in the circuit criminal courts, which is plainly consistent with the scope of the power granted to
them under Section 1 ""to try and decide."
The main opinion quotes from my concurring opinion in People vs. Gutierrez, 36 SCRA 172, apparently
to show that in my view, "circuit criminal courts are nothing but additional branches of the regular Courts
of First Instance in their respective districts . But the portion quoted from my opinion is not complete, wna
I said was this:
"I take it that under Republic Act 5179, Circuit Criminal Courts are nothing but additional branches of the
regular Courts of First Instance in their respective districts with the limited concurrent jurisdiction to take
cognizance of, try and decide only those cases enumerated in Section 1 of the Act. This is readily implied
from Section 3 of the Act which says:
"'SECTION 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First
Instance and the trial, disposition and appeal of criminal cases therein shall be applicable to the circuit
judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this
Act.'

49
"xxx xxx xxx"
In other words, I adhered closely to the language of the statute and referred to the jurisdiction of the
criminal courts as comprising of the power "to take cognizance of, try and decide" only the cases therein
enumerated. I did not concede that the authority was broadly "over" those cases, as in Section 44 of
Judiciary Act, but strictly "to take cognizance of, try and decide" them.
There is another point which is more transcendental. The main opinion assumes the correctness of the
generally prevailing impression that courts of first instance continue to possess the jurisdiction to conduct
preliminary investigations. It cites the Rules of Court as the source of such authority. For my part, 1 am
not sure, to put it mildly, that the Supreme Court can arrogate jurisdiction unto itself or grant any to the
lower courts by merely
promulgating a rule to such effect. I believe it is safer to hold that jurisdiction to act on any given matter
may be granted only by statute or legislative enactment, for the simple reason that jurisdiction is
substantive and not adjective in nature. And so, the question in my mind is simply this,
assuming arguendo that circuit criminal courts have all the powers of the regular courts of first instance,
which I dispute, is it clear that the latter courts
continued to possess, after the Judiciary Act of 1948 went into effect, the power to conduct preliminary
investigations? In other words, are the provisions of the Rules of Court invoked in the main opinion,
Section 13 of Rule 112, predicated on any law or statute?
According to former Chief Justice Moran, this section was "taken, with amendments, from Section 4 of
former Rule 108, which was a substantial re-statement of the ruling of the Supreme Court in one case,"
citing People vs. Solon, supra. (See 4 Moran, Rules of Court, p. 117, 1970 ed.) But Sec. 4 of Rule 108
was part of the Rules of Court of 1940, when Act 1627 was still in force. Apparently, when Rule 108 was
revised in the 1964 Rules, it was overlooked that under Section 99 of the Judiciary Act, "all laws and rules
inconsistent with the provisions of this Act" was repealed thereby wiping away Section 37 of Act 1627.
No matter how many times one may read the provisions of the whole Judiciary Act of 1948 and
particularly those that refer to the jurisdiction of the Courts of First Instance, one will never find any word
therein that directly or indirectly confers upon said courts the authority to conduct preliminary
investigations. In pointing out this patent omission, I am of course assuming that the jurisdiction to
conduct preliminary investigations, while sometimes given to courts in spite of its being basically an
[2]
executive function per Orendain, is not inherent in every court.For instance, in the Judiciary Act itself, it
can be clearly seen that as in the case of Act 194, seventy-five years ago, by Section 87 of the Act, the
legislature had to expressly vest upon inferior courts the power to conduct such preliminary
investigations. Thus, Section 87 provides in unmistakable terms:
xxx xxx xxx
"Said municipal judges and judges of city courts may also conduct preliminary investigation for any
offense alleged to have been committed within their respective municipalities and cities which are
cognizable by Courts of First Instance and the information filed with their courts without regard to the
limits of punishment, and may release, or commit and bind over any person charged with such offense to
secure his appearance before the proper court."
xxx xxx xxx
If, as the majority maintain, the power to conduct preliminary investigation is vested in all our courts by
the Bill of Rights in the Constitution, of what need is there for the provision just quoted? Upon the other

50
hand, if such conferment is merely confirmatory of an existing constitutionally based authority, I see no
reason at all why there should be such an express confirmation of the power of inferior courts alone and
none at all of that of the Courts of First Instance.
My position is that the silence of the pertinent provisions of the Judiciary Act on the matter, taken together
with the fact that Section 99 of the Act repeals all laws and rules inconsistent with the provisions of this
Act, indicates an unmistakable legislative intention to remove from the Courts of First Instance the
prerogative under discussion.
It is argued that to thus argue is to rely on repeal by implication which is not favored. I contend, however,
that such pose overlooks the fact that the Judiciary Act of 1948 is indisputably in the nature of a
codification of all laws existing at the time of its passage related to the judiciary, the judges, the courts
and their respective jurisdictions. Such being the case, the applicable rule of statutory construction is that
to the effect that when scattered statutes and provisions relative to the same subject matter are embodied
subsequently in a single comprehensive legislation, any particular provision incorporated therein and
germane to the main subject matter is deemed to be repeated. (Sutherland Statutory Construction, Vol. 1,
Sec. 2019, pp. 480-481.) Which is but logical, as otherwise, of what use is the integration?
The main opinion points to certain legislations subsequent to' 1948 which it contends constitute
recognition on the part of Congress of the continued authority of Courts of First Instance to conduct
preliminary investigations, such as, the Dangerous Drugs Act of 1972 or Republic Act 6425, and Republic
Act 5180 governing preliminary investigations by fiscals.
As regards Republic Act 5180, the main opinion claims that because Section I thereof makes mention of
"investigation . . . conducted by a Court of First Instance ... in accordance with law," said provision is proof
of a legislative assumption that said courts can exercise such power. To start with, I have never denied
that there are instances when by specific provision of the pertinent laws, preliminary investigations in
prosecutions under said laws have to be done by the Courts of First Instance, such as, in violations of the
Election Law, the Anti-Subversion Act, Republic Act 1700 and the Dangerous Drugs Act, as amended by
Presidential Decree No. 44.
But as I see it, if Republic Act 5180 is of any materiality in this discussion, it is in that it makes more
patent that the policy of the law on preliminary investigations is to make them as expeditious as possible
but without depriving the accused of the opportunity to be heard, which is likely to happen in a preliminary
[3]
[4]
investigation in a Court of First Instance, following Solon and Marcos, unless, of course, the procedure
[5]
provided for in Section 13, Rule 112 is followed pursuant to Albano vs. Arranz. It sounds to me rather
anachronistic for a law to emphasize the right of an accused to be heard before he is arrested, while it
perpetuates in the same breadth as a general rule a procedure which denies that right. Besides, why did
not Republic Act 5180 which was approved on the same day as Republic Act 5179, mention preliminary
investigation by Circuit Criminal Courts, just as the other later law, Republic Act 6425, cited in the main
opinion expressly treated and referred to said courts separately from the Courts of First Instance and
Domestic Relations Courts, if really Congress intended to confer the power in issue on them?
The reference to Republic Act 6425 is even more revealing of the insistence of the majority to cling to any
drifting straw in their effort to prove their point. Republic Act 6425 originally granted to the Circuit Criminal
Courts exclusively jurisdiction over cases for violation thereof. Of course, it also contained provisions
about preliminary investigations, but these did not in any manner indicate whether expressly or impliedly
that the same courts would have authority to conduct such investigations. Here is the pertinent provision,
before it was amended by Presidential Decree No. 44:

51
"SECTION 39. Jurisdiction of the Circuit Criminal Court. The Circuit Criminal Court shall have
exclusive original jurisdiction over all cases involving offenses punishable under this Act.
The preliminary investigation of cases filed under this Act shall be resolved within a period of seven (7)
days from the date of termination of the preliminary investigation. Where aprimafacie case is established,
the corresponding information shall be filed in court within twenty-four (24) hours. Decision on said cases
shall be rendered within a period of fifteen (15) days from the date of submission of the case."
It is to be noted that there is here a requirement that the corresponding information should be filed in
court within 24 hours. Does not this show that the preliminary investigation is not to be conducted by the
court itself? But, as if to make it more patent that it is better that the investigation is undertaken by
another authority, Presidential Decree 44 amended the above provision as follows:
"SECTION 39. Jurisdiction. The Court of First Instance, Circuit Criminal Court, and Juvenile and
Domestic Relations Court shall have concurrent original jurisdiction over ail cases involving offenses
punishable under this Act: Provided, That in cities or provinces where there are Juvenile and Domestic
Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under
sixteen years of age.
The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30)
days from the date of their filing.
Where the preliminary investigation is conducted by a prosecuting officer and a prima facie case is
established, the corresponding information shall be filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary investigation is conducted by a judge and a. prima
facie case is found to exist, the corresponding information shall be filed by the proper prosecuting officer
within forty-eight (48) hours from the date of receipt of the records of the case.
Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the
date of the tiling of the information. Decision on said cases shall be rendered within a period of fifteen (15)
days from the date of submission of the case."
That the foregoing provision does not vest any preliminary investigation authority in any of the courts
mentioned is best proven by the fact that the Juvenile and Domestic Relations Courts have never
conducted any preliminary investigation whether under its original charter or under this provision. I am not
aware that any Court of First Instance has ever done so. The mention of "the preliminary investigation
(being) conducted by a judge" in the above provision contemplates, to my mind, not the judges of the
courts specified therein, but the proper municipal judges, bearing in mind the considerations already
discussed above relative to the tendency of the every new law to remove from superior courts the power
to conduct preliminary investigations. Indeed, in this connection, it is to me a mystery how easily my
brethren have forgotten that when in another case the very same respondent judge here did nothing more
than act as the officer before whom the accused swore a confession which the said accused later on
repudiated as having been secured thru violence and intimidation, We disqualified respondent from trying
the case for fear that he might not be able to maintain "the cold neutrality of an impartial judge." Quite
inconsistently, they now hold that the law in question allows a judge to conduct the preliminary
examination of the witnesses of the prosecution to issue a warrant of arrest and to subsequently try the
main case on the merits, even if the language of said law in issue is not really clear and the existence of
the pretended power is just being gathered from inference of doubtful logic, while, on the other hand,
there is a multitude of reasons strongly justifying the contrary construction.
In what I consider, with the pardon I hope of my learned colleagues, to be a desperate but vain effort to
provide substantive law basis for Section 13 of Rule 112, the main opinion falls back on of all things the
provision of the Bill of Rights of the Constitutions of 1935 and 1973 enjoining that no warrant (of arrest)

52
[6]

"may issue but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce." It is posited that this constitutional
mandate is the ultimate source of the authority of the Courts of First Instance, assumingthe absence of
any statutory basis, to conduct preliminary investigation. As I understand it, the theory is that under the
Constitution, warrants of arrests may be issued only by judges (under the 1935 Constitution), and since
before doing so, they must examine the complainant and his witnesses under oath, ergo, judges, and I
presume that would mean all judges, are constitutionally vested with jurisdiction to conduct preliminary
examinations, if not investigations. But as I will demonstrate anon, I sense some kind of non
sequitur here. At this point, however, I will just make the observation that if it were true that all judges may
conduct preliminary examinations by virtue of the above provision of the Bill of Rights, why did the
majority have to go thru all the trouble of a lengthy and laborious, if scholarly, desertation of why Circuit
Criminal Courts have all the powers of the Courts of First Instance to prove that they can like the latter
courts conduct preliminary examinations, when all they had to say is that Circuit Criminal Court Judges
are among the judges the Constitution contemplates. Moreover, if the theory of the majority is to be
pursued to its logical conclusion, then the jurisdiction of judges in the matter in issue cannot but be
exclusive, for the Constitution mentions no other officer who may issue warrants of arrest. But then the
question would arise, from where did our municipal mayors derive their authority under existing rules to
perform such function?
I have carefully perused with deep interest the elaborate statement in the main opinion of the "historical
background of our law on criminal procedure." I regret to state, however, that even after such a very
refreshing intellectual excursion, I still cannot see that such historical background traced by my scholarly
brethren necessarily leads to the conclusion that the power of our courts to conduct preliminary
investigation springs from the Constitution or that after the Judiciary Act of 1948 repealed all laws and
rules inconsistent with its provisions, the statutory authority of Courts of First Instance to conduct
preliminary examinations and investigations still continued to exist. Quite to the contrary, my reading of
the history of the law on preliminary investigations in this jurisdiction indicates that this Court has been
consistently holding that the right to a preliminary investigation is not a constitutional right, at least in so
far as the so-called second stage thereof is concerned. In Marcos vs. Cruz.68 Phil. 96, this Court
unanimously held: "In this jurisdiction, the preliminary investigation in criminal cases is not a creation of
the Constitution; its origin is statutory and the right thereto can be invoked when so established and
granted by law." (at p. 104) According to the same decision, it is only when there is a statute granting
such right and slill it is denied to the accused in spite of his demand therefor that there is a violation of the
due process clause of the Constitution. More authoritatively, in my opinion, in Hashim vs. Boncan, 71
Phil. 216, no less than Justice Laurel took occasion to say: "Viewed in the light of
fundamental principles, the right to preliminary investigation is statutory, not constitutional." (at p. 225.)
Of course, I am not overlooking the fact that seemingly what the main opinion contends to be
constitutionally based is the power of judges to issue warrants of arrest, which corresponds only to the
first stage of the prosecution known as preliminary examination, and for this reason, it is maintained the
purported ruling can stand together with the Marcos and Hashim doctrines which relate to the second
stage known as the preliminary investigation. 1 do not see it that way.
My understanding of the Bill of Rights provision pertinent to this discussion, which reads thus:
"Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or

53
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized." (Art. IV, 1973 Constitution.)
is that it is a prohibition against anyjudge issuing a warrant of arrest without complying with the
requirements set forth therein. In fact, an arrest may even be made without a warrant, and it is only when
a warrant is needed that the judge who is to issue the same is constitutionally bound to adhere to the
conditions therein laid down. Literally, the provision does not refer to all judges, but only to "the
judge" who will issue the warrant and that to me is presumably only the judge who by statute is authorized
to act in the premises. In fine, the Constitution does not vest uponjust anyjudge, much less upon all
judges, jurisdiction to issue warrants of arrests; it merely limits and lays down conditions before anyjudge
authorized by law to issue warrants may do so. In like manner, it cannot be argued that because Section
4( 1) of the Bill of Rights provides that privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, just any court in the Philippines, even a municipal court can grant
such authority or that because the liberty of abode and of travel shall not be impaired except upon lawful
order of the court, according to Section 5, also of the Bill, it follows that all courts in the Philippines may
act in the premises, regardless of the definition and allocation of jurisdiction by the National Assembly or
the legislature, who, after all is constitutionally endowed with authority to precisely make such allocation.
(Sec. 1, Art. X, 1973 Constitution.) Indeed, this provision which reads thus:
"SECTION l.The Judicial power shall be vested in one Supreme Court and in such inferior courts as may
be established by law. The National Assembly shall have the power to define, prescribe, and apportion
the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section five hereof."
readily connotes that except in the case of the jurisdiction of the Supreme Court, it is not the Constitution
but the statutes that are the sources of the jurisdiction of all the various courts of the country.
Moreover, to my mind, the development of the law on preliminary investigations in this jurisdiction evinces
a clear tendency not only to give the accused in all such investigations the opportunity to be present, to
cross-examine the witnesses of the prosecution and to present his own evidence, until lately when the
right to cross-examine was eliminated by Presidential Decree 77 as amended by Presidential Decree
911. but also (2) to transfer the function of conducting preliminary investigations, sans the power to issue
warrants of arrest, to prosecuting officers belonging to the Executive Department to which the prerogative
to prosecute or not to prosecute properly belongs in the exercise of the President's duty to see to it that
the laws are properly executed. (Estrella vs. Orenclain, 37 SCRA 640.) Of course, in special cases
wherein it is required by what in the legislature's judgment is the public interest, the particular statute
concerned expressly provides that the preliminary investigation be conducted by the Court of First
Instance, such as, in cases of violation of Election Code and cases of violations of the Anti-Subversion
Law (Act 1700). Indeed, with the broad control given to the Secretary of Justice over crime prosecution by
Presidential Decree 911, not to mention Our own ruling in Estrella recognizing his power of supervision
and control over fiscals, as long as the case has not passed to the jurisdiction of the court, it does not
sound realistic and in keeping with the trend of recent developments in the pertinent laws to further allow
[7]
prosecutions to be initiated in the Courts of First Instance.
At this juncture. I would like to address myself to the separate concurring opinion of Mr. Justice Fernando,
whose specialization in matters of constitutional law has won recognition not only for him but also for our
country from no less than the organizers of the constitutional aspect of the bicentennial celebration of the
American. I do not mind saying that whenever I want to be comprehensive in my study of constitutional
issues, I always find his views illuminating. But on the point now in controversy, I find it difficult to see his

54
point. Thus, he particularly underlines his conformity to the ruling in the main opinion that the 1935 as well
as the 3973 Constitution "provide the source of the power of all Judges, including Judges of the Courts of
First Instance, the Circuit Criminal Courts, and other courts of equivalent rank to determine probable
cause before the issuance of arrest and therefore sustain the proceedings conducted by respondent
Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other
government prosecutor for the filing of the corresponding information," not without hastening to clarify,
however, that "it is (his) understanding . . . that the decision reached is at most an affirmation that the
present Constitution, as did the 1935 Constitution, confers the power to conduct (the) preliminary
examination preparatory to issuing a warrant of arrest, to a circuit criminal court judge" and that "it is only
the first stage in the criminal process that may lead to the apprehension of the accused that has been
passed upon by the Court," such that as to the judges' competence regarding a preliminary investigation,"
or "the second stage, (the) preliminary investigation proper," . . . "that question has been left open."
Of course, that such specifically was what the members of the Court were made to understand during the
deliberations by the distinguished writer of the main opinion is clear and distinct in my recollection. As a
matter of fact, for a moment I entertained earnestly the thought that I could probably join my brethren in
the formulation of such a ruling. I had in mind then Mr. Justice Fernando's pose in his book on the Bill of
Rights (1970 Edition) that the significance of entrusting the responsibility of determining the existence of
probable cause exclusively to judiciary (under the 1935 Constitution) in the defense of freedom cannot be
overestimated, (p. 177) But after trying very hard to see it his way, I have to confess, I have arrived at the
conclusion that such a proposition cannot stand close scrutiny, if only because even if none but judges
may issue warrants of arrest, it is not indispensable that all judges be vested with such power, so it is
really up to the legislature to determine which court or judge should be endowed with it.
My knowledge, if limited, of the origin of the competence of judges to issue warrants of arrest is to the
effect that it is a prerogative that antedates both the 1935 and the 1973 Constitutions. It was in fact
recognized by the American military occupation authorities from the very inception of their rule over the
Philippine Islands in 1901, as evidenced by General Orders No. 58, our first code of criminal procedure of
American vintage. Surely, such military order cannot in any sense be deemed to be a mandate of
constitutional stature. No doubt, Section 13 of Rule 112 appears to be a mere reiteration, if with
substantial modifications, of similar provisions of General Orders No. 58 and Section 37 of Act 1627, but I
regret I cannot accept the hypothesis emphasized in the main opinion that because said provision of the
rules is supposed to be an implementation of the Bill of Rights provision against unreasonable searches
and seizures, We must perforce conclude that the Bill of Rights is the source of the jurisdiction of the
judges to act in the manner provided in said rule. There can be no dispute about the imperative need to
make the safeguards against unreasonable arrests, searches and seizures as air tight as possible, but it
is equally undeniable that giving the power to determine the existence of probable cause exclusively to
judges is not the only guarantee that can ensure that end. Not only fiscals but even municipal mayors
have for decades exercised said power in this jurisdiction, and instead of condemning such practice, this
Court has expressly sanctioned the same as being conducive to a more efficient system of prosecution of
offenses. (See Hashim vs. Boncan, supra.) What is more, the 1973 Constitution has given the practice
explicit constitutional basis by providing that probable cause may also be determined by "such other
responsible officer (not necessarily a judge) as may be authorized by law."
More than ever before, I now hold that the Bill of Rights provision under discussion has not been
designed to confer the power to determine probable cause to every judge in the courts of the Philippines;
rather said provision lays down the conditions and limitations which the particular judges authorized by
law to perform such function must observe. I feel I am supported in this view by the following excerpts

55
from the records of the Constitutional Convention of 1934 containing the apt observations of no less than
Senator Vicente J, Francisco and Justice Jose P. Laurel:
"EL PRESIDENTS. Tiene la palabra el Delegado por Cavite. EL SR. FRANCISCO RAZONA SV
ENMIENDA
SR. FRANCISCO. Senor Presidente y Caballeros de la Convencion: bajo el proyecto del Comite de 7, se
puede expedir, mandamientos de registro, con tal de que la peticion vaya acompanada de un affidavit en
el que aparezcan hechos y circunstancias que demuestren causas probables. Bajo mi enmienda, un juez
puede expedir un mandamiento de registro sino solo despues de haber examinado at denunciante y a
sus testigos bajo juramento. Parece ser que la diferencia es grande. El texto en ingles del projecto dice:
'xxx and no warrants shall issue but upon probable cause, supported by oath or affirmation and
particularly describing the place to be searched, and the persons or things to be seized.'
Esta expresion ha sido interpretadapor los tribunates de America en el sentido de que el juez tiene dos
medios: o puede tomar en cuenta para la expedicion de un mandamiento de registro un affidavit en el
que consten hechos y demuestren la causa probable, o mediante examen del denunciante. Someto a la
consideracion de esta Asamblea que es completamente peligroso permitir que un juez expida
mandamiento de registro, atendiendoseexclusivamenie a lo que consta en un affidavit. Esta idea de que
se puede expedir mandamiento de registro mediante affidavit, o sea, solamente mediante un documento
jurado en el que aparezcan hechos probables, no ha sido acepfada por esta jurisdiction, no solamente en
la practica sino tambien por la orden general Num. 58. Esta convencion, creo, se habra jijado que en
dicha Orden General Num. 58 esta disposicion que aparece en el proyecto del Comite de 7 que es una
reproduccion o copia del precepto que aparece en el bill de Filipinos y luego en la Ley Jones,
aparece reproducida, como ya he dicho, en la Orden General Num. 58, coma articulo 2 7. Este articulo
2 7, dice lo siguiente: 'No se expedir a mandamiento de registro sino por causa probable y por falta de
peticion apoyada por juramento'. Como ya he dicho, 'peticion apoyada por juramento 'puede ser
testimonio del festigo o affidavit.
Considerandose, sin embargo, que estos es verdaderamente peligroso para el derecho que tiene un
individuo a la seguridad de sus bienes y papeles, nuestro mismo Codigo de Procedimiento Civil inserta
en su Articulo 28 una disposicion que exige como requisito 'sine quanon' el que el Juez no pueda expedir
mandamiento de registro sino mediante el examen de testigos, especialmente del denunciante. Este
articulo viene a ser el Articulo 28 del Codigo de Procedimiento Civil que dice lo siguiente: 'El Juez de
Primera Instancia o el Juez de paz debera, antes de expedir el mandamiento, examinara bajo juramento
al denunciante o al testigo presente, consignando sus declaraciones por escrito.' De modo que mi
enmienda es a tenor o en consonancia con esta disposicion legal. Como ya he dicho, si mantuvieramos
el precepto del proyecto de constitucion, esta disposicion de la Orden General Num. 58 podra en cierto
modo ser contradictoria al precepto del proyecto de constitucion, y nosotros sabemos muy bien que si se
aprobara una constitucion en la forma como esta el precepto, cuya enmienda pido, y si encontrara una
discrepancia sustancial entre dicho precepto y el Codigo de Procedimiento Civil, creo que este ultimo
tendria que quedarse derogado, o al menos no puede mantenerse este precepto por anti-constitucional.
Pero yo creo que ninguno de los miembros de esta Asamblea vera que mi enmienda no responde a una
razon fundamentaly a una necesidad que se ha sentido en la practica. Los abogados que estamos en el
ejercicio de la profesion hemos visto muchas veces casos en que agent es secretos consiguen
mandamientos de registro solamente mediante la presentacion de un affidavit que reune los requisitos de
la Ley. Pero que expedido el registro e impugnados despues los terminos del affidavit se descubre que
los hechos que aparecen en el mismo son completamente falsos. De ahi que si queremos salvaguardar
en todo lo posible el derecho de unindividuo a arrestos o registros arbitrarios; si queremos que

56
el derecho de! individuo a la seguridad de sus bienes o papeles este rodeado de todas las garantias que
puedan impedir o que impidan la expedicion de registros inmotivados o infundados que pueden dar
lugar a molestias o vejaciones injustas e irreparables, creo que debemos hacer que en nuestra
constitucion se consigne el precepto tal como yo propongo que se enmienda. " (Pp. 750- 752, Vol. III.)
"EL PRESIDENTE. El Delegado por Batangas (Senor Laurel) acepta la enmienda?
I cannot close this separate opinion without inviting attention to certain specific points of procedure which
the main opinion seems not to have bothered to pass upon, notwithstanding what I consider to be their
importance. In G .R. No. L-34038,1 notice that respondent judge conducted a preliminary investigation on
the basis of nothing more than a letter-complaint of the petitioner Collector of Customs. It is not stated
whether or not it was in due form or under oath. While as Mr. Justice Fernando stresses, this decision
recognizes only the power of respondent judge to conduct the first stage or the preliminary examination,
in G.R. No L--34038, L-34243, L- 39525 and L-40031, what are actually involved are preliminary
investigations, both the first and second stages. It is only in G.R. Nos. L-36376 and L-38688 that
respondent judge has not been able to conduct even the preliminary examination. Frankly, I am at a loss
as to how the dispositive portion of Our judgment is to be understood, considering that the consensus
among the members of the Court, as attested to by Mr. Justice Fernando, reaches only preliminary
examinations and not preliminary investigations, in order precisely to avoid having to overrule Hashim vs.
Boncan and Marcos vs. Cruz, which I understand some members of the Court are not ready to do.
Regarding G.R. No. L-34038,1 agree that respondent judge exceeded his authority in providing that his
order of dismissal is with prejudice and in ordering the return of the articles seized by the customs
authorities to his co-respondent Makapugay. Of course, anyway, in legal contemplation the qualification
"with prejudice" thus made by respondent judge means nothing. In no way can it have the effect of
jeopardy, since what was conducted by him was only a preliminary investigation, which in my opinion is
unauthorized and void. And assuming it to be valid, there would be no need of setting aside the order of
dismissal itself; it is enough to say that it is a dismissal before arraignment and jeopardy has not thereby
attached, the express qualification therein of "with prejudice" notwithstanding.
IN VIEW OF ALL THE FOREGOING, I vote to grant the petitions in G.R. No. L-34038 insofar as the
respondent judge's impugned order of July 6, 1971 orders the return of the articles seized to his corespondent Makapugay, and insofar as G.R. Nos. L-34243, L-36376, L-39525, L-38688 and L-40031 are
concerned, I am giving my concurrence to the judgment therein subject to the qualifications I have
discussed in this separate opinion.
SR. LAUREL. No, senor Presidente, y quisiera dec'tr dos palabras.
MR. LAUREL. Mr. President and Gentlemen of the Convention: The anomalies pointed out by the
Honorable gentleman from Cavite, Mr. Francisco, if they ever occur at the present time, it is because of
the irregularities committed by some justices. The amendment introduced by the distinguished Delegate
from Cavite is already covered by existing legislation, and if those irregularities pointed out by him really
occurred, it is because some justices have not enforced and adhered to the specific provision of the
General Order. The General Order, or the Code of Criminal Procedure, now provides that the judge,
before issuing a search warrant, must examine the complainant and his witnesses and that he must take
their depositions in writing. The reason why we are in favor of this amendment is because we are
incorporating in our constitution something of a fundamental character. Now, before a judge could issue a
search warrant, he must be under the obligation to examine personally under oath the complainant and if
he has any witness, the witnesses that he may produce. It is not necessary for me to recall here one of
the grievances of the early settlers in America which was one of the causes of the revolution against the
mother country, England; the issuing of the so-called general search warrant. It is, therefore, quite
important that we impose this obligation upon the judge, so that he will not be issuing search warrant in

57
blank, or simply accompanied by affidavits, but that he must consider the sanctity of the home. It is
necessary that we surround that power with the necessary constitutional guaranty. You might say that as
this amendment is already in the general legislation, what is the necessity of incorporating this in the
constitution. The necessity consists in that the constitution is something permanent for the protection of
the individual citizen. It is proper that we incorporate that provision rather than general legislation in this
constitution that we shall adopt. For this reason, the committee accepts and approves of the amendment
as suggested by Delegate Francisco" (Pp. 757-758, Vol. III.)
And so, since there is neither any constitutional provision nor statute that presently confers on Judges of
the Courts of First Instance the power to conduct preliminary examinations, and the trend of our laws is to
leave such function to other responsible officers, except the very act of issuing the warrant of arrest, I
have no alternative but to deny to Circuit Criminal Courts such power.

[A.M. No. RTJ-01-1639. November 29, 2002]

CONCERNED CITIZEN OF MADDELA and JUDITH B. ERMITANIO, complainants, vs. JUDGE MA.
THERESA DELA TORRE-YADAO, Regional Trial Court, Branch 38, Maddela,
Quirino, respondent.

[A.M. No. 00-9-427-RTC. November 29, 2002]

JUDITH ERMITANIO, complainant, vs. JUDGE MA. THERESA DELA TORRE-YADAO, Regional Trial
Court, Branch 38, Maddela, Quirino, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
The present administrative cases stemmed from two letter-complaints dated February 23, 2000 and
March 1, 2000 filed respectively by a concerned citizen of Maddela and Judith B. Ermitanio against
[1]
Judge Ma. Theresa dela Torre-Yadao, Regional Trial Court (RTC), Branch 38, Maddela, Quirino.
In the anonymous letter-complaint, respondent judge is being denounced for: (1) sleeping with a
female employee in her chambers; (2) collecting gasoline allowance from politicians; (3) directing her
court personnel to render services in her house at Quezon City; (4) buying narra logs from a litigant and
storing them in her chambers; (5) bringing to her house books, furnishings and equipment intended for
office use; and (6) reporting at her sala only three days a month.
In her letter-complaint, Judith Ermitanio alleged that despite the filing on March 18, 1999 of the
Information in Criminal Case No. 38-034 for murder involving the death of her husband, respondent judge
failed to issue the corresponding warrant of arrest against accused Michael Badangngayon and Peter
Guinannoy. It was only on March 7, 2000, or after one (1) year, when respondent judge came to know
that an administrative case had been filed against her, that she issued a warrant of arrest dated March
26, 1999.

58
In her comment on the anonymous letter, respondent judge denied the allegations therein for being
false and without basis. She stated that the writer is actually Marilou Cabanatan, a court stenographer in
her sala. Respondent judge explained that she sent Marilou memoranda and show-cause letters for her
habitual absenteeism and tardiness, disobedience and neglect of duty. Obviously, the latter was
motivated by ill will in resorting to an anonymous letter-complaint.
On the complaint of Judith Ermitanio, respondent judge explained that after the filing of the
Information in Criminal Case No. 38-034, or on March 26, 1999, she issued the corresponding warrant of
arrest against the accused, a copy of which was received by the Maddela Police Station on the same
day. Considering that the accused could not be apprehended, she issued an order on March 2, 2000
directing that the case be archived and that an alias warrant of arrest be issued. On March 8, 2000, the
PNP of Maddela received a copy of the alias warrant. On March 15, 2000, respondent judge received a
request for the issuance of an alias warrant of arrest from the Maddela Police Station, but she only noted
it in view of the March 2, 2000 order.
Due to the seriousness of the allegations in the letter-complaints against respondent judge, the
Office of the Court Administrator referred the matter to the National Bureau of Investigation (NBI) for a
discreet investigation.
In his report dated September 18, 2000, NBI Special Investigator Gerard L. Butale stated that after
conducting an investigation, he found that there is reason to believe that respondent judge committed the
acts complained of. He, therefore, recommended that an administrative complaint for serious
misconduct and gross inefficiency be filed against her.
In a Resolution dated July 11, 2001, this Court referred the case to Justice Eloy R. Bello, Jr. of the
Court of Appeals for investigation, report and recommendation.
In his Report and Recommendation, Justice Bello stated that no evidence was presented to support
the allegations in the anonymous letter-complaint dated February 23, 2000 against respondent
judge. Hence, his Report and Recommendation deals mainly with the complaint of Judith Ermitanio, thus:
Amidst the conflicting claims of the opposing parties and after a careful consideration and scrutiny of the
evidence, particularly the testimonial evidence presented by both parties, this Court finds more reasons to
believe the version of the complainant.
If indeed, a warrant of arrest had been issued and was served on the PNP Maddela on the date being
claimed by the respondent judge, the complainant would not have filed the present administrative case in
the first place, since her only complaint is the non-issuance of a warrant of arrest in the case of her
husband. If a warrant of arrest had been issued as early as 26 March 1999 and was received by the PNP
Maddela on the same date, why was not the complainant told about the said warrant during the times she
went to the court to follow up whether a warrant of arrest regarding her husbands case had already been
issued? The testimony of Crisostomo Molina, one of the witnesses for the respondent judge, that the
complainant never went to the court to follow up the case is not at all believable. That the complainant
has been following up the case since April 1999 until March 2000 has been corroborated by the testimony
of all the other witnesses for the complainant. Moreover, the fact that the complainant was able to write
to Mayor Fred Lim and even went as far as the Supreme Court would show how persistent complainant is
in fighting for the cause of her late husband. It would be highly improbable for the complainant not to
have gone to the court to follod
It has also been established that the complainant had been following up the warrant with the PNP
Maddela and the Fiscals Office. If a warrant had already been issued and served on the PNP Maddela,
why did the latter seem not to know about the said warrant when the complainant went to their office to
follow up the case? If a warrant of arrest has already been issued and delivered to the PNP Maddela as
early as 26 March 1999, we do not find any reason or motive on the part of the PNP Maddela, to hide the
fact of the issuance of the said warrant from the complainant. Also, why was not Fiscal Orias informed
about the said warrant when he also went to the court to follow up the case and why did he not see a
copy of the said warrant in the records of the case when he inspected the said records?

59
The logical conclusion that could be drawn from all these is that, maybe, there was no warrant of arrest
issued on the date being claimed by the respondent judge, or a warrant of arrest had been issued by the
respondent judge on the date being claimed by her, but the same was not timely served on the PNP
Maddela.
The document being presented by the respondent judge, purporting to be the warrant of arrest dated 26
March 1999, and which was received by the Maddela Police on the same date, deserves scant
consideration since the due execution of the same is being refuted by the testimonies of the witnesses for
the complainant.
Although the respondent judge enjoys the presumption of regularity in the performance of her official
duty, this presumption is not, however, conclusive. It is only a disputable presumption, meaning, it is
satisfactory only if uncontradicted and may be overcome by other evidence to the contrary. The
testimonies presented by the complainant dispelling the regularity of the issuance of the warrant of arrest
are more than enough to dispute this legal presumption of regularity in the performance of official duties.
According to the police, they have not received any warrant of arrest regarding the case of People of
Philippines vs. Michael Badangayon and Peter Guinannoy until March 2000. P/Chief Insp. Bernardo Baui
testified that on 07 March 2000, a warrant of arrest dated 26 March 1999 was received by their office,
particularly by SPO4 Librado Raquipiso. He further testified that on 14 March 2000, the respondent
judge, together with her staff, went to the police station asking that another warrant of arrest dated 26
March 1999 be received by his office without indicating the date of receipt of the same. He claimed that
he refused at first, but consented eventually since they have earlier received the same warrant of arrest
on 07 March 2000 indicating the date of receipt, and so he called on SPO1 Honofre Reolalas to receive
the same without indicating the same of receipt. The aforesaid testimony was further corroborated by the
testimony of SPO1 Honofre Reolalas.
What is more telling is the testimony given by Norman Ruabaro, one of the staff of the respondent judge
working as docket clerk in Branch 38, RTC, Maddela. He attested to the fact that complainant has been
following up her husbands case with the court monthly, dispelling Crisostomo Molinas testimony that the
complainant never went to court to follow up the case. But that part of his testimony which is most
damaging to the claims of respondent judge and which at the same time further bolstered the allegations
of complainant, is that part where he claimed that no warrant of arrest was issued on March 1999 and
narrated how three warrants of arrest were issued all in all on March 2000. He claimed that he typed a
warrant of arrest in 1999 but the judge refused to sign the same. On March 2000, he prepared a warrant
of arrest dated 26 March 1999, he delivered the same to the PNP Maddela on 07 March 2000 and the
same was received by SPO4 Raquipiso on the same date. He also testified that OIC Molina was able to
retrieve the said warrant from the PNP Maddela as per instructions of the respondent judge and claimed
that he hid the same afterwards. He further testified that subsequently, he, together with the respondent
judge and the other staff, went to the PNP Maddela to have another warrant of arrest dated 26 March
1999 received by the PNP Maddela without indicating the date and that they succeeded in having the
same received by Sr. Police Officer Onofre Reolalas without indicating the date of receipt. Lastly, an
alias warrant dated 02 March 2000 was issued.
Since the date of receipt by the PNP Maddela of the said warrant of arrest is being refuted by evidence
to the contrary, the said warrant of arrest being presented by the judge could at most prove the issuance
of the same on 26 March 1999, but not the receipt of the PNP Maddela on the same date. Hence, the
logical probability is that the respondent judge issued the subject warrant of arrest, only that the same
was not served to the PNP Maddela on time. But being the presiding judge, it is her duty to monitor the
due service of legal processes in her court. Thus, she is guilty of simple negligence on the principle of
[2]
command responsibility.
In determining the appropriate penalty, Justice Bello considered the presence of the following
circumstances which he believed could mitigate respondents liability: a) this is her first offense since her
appointment to the judiciary; b) it was probable that she issued a warrant of arrest on March 26, 1999 but

60
the PNP at Maddela was not furnished with a copy on time; and c) her failure to monitor the service of the
warrant of arrest was an oversight on her part considering that she was designated Presiding Judge of
RTC, Branch 37 in Bayombong, Nueva Viscaya and RTC, Branch 81 in Quezon City, in addition to her
regular duties as Presiding Judge of RTC, Branch 38, Maddela, Quirino. Justice Bello then
recommended that respondent be merely reprimanded and warned that a repetition of the same or similar
offense will be dealt with more severely.
While the findings of the Investigating Justice are well-taken, we do not, however, agree with his
conclusion and recommendation.
The issue here is whether respondent judge actually issued a warrant for the arrest of the accused in
Criminal Case No. 38-034 on March 26, 1999 or after the filing of the Information on March 18, 1999.
Chief Inspector Bernardo Baui and Senior Police Officer Onofre Riolalas, both of the Maddela Police
Station, Norman Ruaboro, a docket clerk at the RTC, Branch 38, Maddela, and Ferdinand Orias,
Provincial Prosecutor of Quirino, all testified that respondent judge did not issue a warrant of arrest on
March 26, 1999, nor did the Maddela Police receive any warrant on that day. We note that they even
confirmed the fact that complainant was persistent and assiduous in following up the issuance of the
warrant of arrest. If indeed respondent judge issued the warrant on that date, complainant should have
been informed about it by the court personnel when she was consistently following it up from April 1999 to
March 2000, or a span of one (1) year. Instead, she was always told by the OIC of the court that the
judge was not around.
Moreover, it did not escape this Courts attention that respondent judge even attempted to cover up
her inaction when she issued a warrant of arrest dated March 26, 1999 almost a year after, or on March
7, 2000. Norman Ruaboro, RTC docket clerk, attested to the fact that sometime in March 2000, he
prepared a warrant of arrest dated March 26, 1999 and delivered the same on March 7, 2000 to the
Maddela PNP. This was received by SPO4 Librado Raquipiso on the same date. However, the warrant
was retrieved by OIC Crisostomo Molina upon instructions of respondent judge. Norman further testified
that he, together with respondent judge and the other members of her staff, went to Maddela Police
Station to file another warrant of arrest dated March 26, 1999 with her instruction that the date of receipt
should not be specified. Senior Police Officer Riolalas received the same without indicating the
date. Chief Inspector Baui and Senior Police Officer Riolalas corroborated Normans testimony.
At this point it bears stressing that it is within the discretion of the judge to issue a warrant for the
[3]
arrest of an accused in a criminal case. A judge is required to personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. However, if he finds probable cause, then he is mandated by
[4]
law to issue such warrant. In such case, the issuance of the warrant of arrest is a matter of extreme
urgency to abate the possibility of flight of the accused.
Here, while respondent judge found probable cause which justified the issuance of warrant of arrest
in Criminal Case No. 38-034, she did not issue the same as mandated by law. As a result, the accused
could no longer be apprehended.
While we understand that respondent judge at that time was designated Presiding Judge of two
other RTC salas (Bayombong, Nueva Viscaya and Quezon City), such fact does not justify her failure to
[5]
issue a warrant of arrest. She herself admitted that Branch 38 of RTC, Maddela has only a few pending
cases. Clearly, she could have acted with dispatch. Her inaction obviously delayed the proceedings in
Criminal Case No. 38-034 and undermined complainants trust in the judiciary.
We thus hold that respondent judge violated Rule 3.05, Canon 3 of the Code of Judicial Conduct
admonishing all judges, among others, to dispose of the courts business promptly.
It is the sworn duty of judges to administer justice without undue delay under the time-honored
[6]
precept that justice delayed is justice denied. The present clogged dockets on all levels of our judicial
system cannot be cleared, unless each and every magistrate earnestly, painstakingly and faithfully
complies with the mandate of the law. Undue delay in the disposition of cases amounts to a denial of
justice which, in turn, brings the courts into disrepute and ultimately erodes the faith and confidence of the

61
[7]

public in the judiciary. Hence, failure of judges to promptly dispose of the courts business constitutes
[8]
gross inefficiency and warrants the imposition of administrative sanctions against them.
Time and again, we remind judges of the importance of high sense of duty in the administration of
justice. They should dispose of the courts business within the prescribed period, as delay reinforces in
[9]
the peoples minds that the wheels of justice grind ever so slowly. As this Court eloquently stated in one
[10]
case:
On the whole, judges ought to be mindful of the crucial role they play in keeping the flames of justice
alive and forever burning. Cognizant of this sacred task, judges are duty-bound to vigilantly and
conscientiously man the wheels of justice as it grinds though eternity. In a sense, judges are revered as
modern-day sentinels, who, like their erudite forerunners, must never slumber, so to speak, in the hour of
service to their countrymen.
For as lady justice never sleeps, so must the gallant men tasked to guard her domain.
Section 9(1), Rule 140 of the Rules of Court, as amended, classifies violation of Supreme Court rules
as a less serious charge which, under Section 11(B) of the same Rule, is penalized with either
suspension from office without salary and other benefits for not less than one (1) nor more than three (3)
months, or a fine of more than P10,000.00 but not exceeding P20,000.00.
WHEREFORE, this Court finds Judge Ma. Theresa dela Torre-Yadao liable for violation of Rule 3.05,
Canon 3, Code of Judicial Conduct. She is ordered to pay a FINE of TWENTY THOUSAND PESOS
(P20,000.00), with a stern warning that a repetition of the same offense will be dealt with more severely.
SO ORDERED.
Panganiban, (Acting Chairman), Corona, and Carpio-Morales, JJ., concur.
Puno, (Chairman), J., on official business.

[ G.R. No. 71782, April 14, 1988 ]

HADJI IBRAHIM SOLAY PANGANDAMAN, MAGAMBAAN PANGANDAMAN, MACARIAN
PANGANDAMAN, MAMINTAL PANGANDAMAN, PACALUNDO PANGANDAMAN, MANGORAMAS
PANGANDAMAN, MACADAOB P. PANGORANGAN, KILATUN PANGANDAMAN, MARIO
PANGANDAMAN, MACABIDAR PANGANDAMAN, PUYAT P. ROMAMPAT, SANTORANI P.
DIMAPENGEN, NASSER P. DIMAPENGEN AND DIAMA OPAO, PETITIONERS, VS. DIMAPORO T.
CASAR, AS MUNICIPAL CIRCUIT TRIAL JUDGE OF POONABAYABAO, TAMPARAN AND MASIU,
LANAO DEL SUR AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION
NARVASA, J.:
The petitioners ask this Court:
1) to annul the warrant for their arrest issued by respondent Judge Dimaporo T. Casar of the Municipal
Circuit Court of Masiu, Lanao del Sur, in Criminal Case No. 1748 entitled People vs. Hadji Ibrahim
Solay Pangandaman, et al.;
2)

to prohibit the Judge from taking further cognizance of said Criminal Case No. 1748; and

3)

to compel the Judge to forward the entire record of Criminal Case No. 1748 to the Provincial Fiscal
[1]
of Lanao del Sur for proper disposition.

62
Their plea is essentially grounded on the claim that the warrant for their arrest was issued by the
[2]
respondent Judge without a proper preliminary investigation. The Solicitor General agrees and
[3]
recommends that their petition be granted and the warrant of arrest voided.
On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del Sur, which left at least five
persons dead and two others wounded. What in fact transpired is still unclear. According to one version,
armed men had attacked a residence in Pantao, Masiu, with both attackers and defenders suffering
[4]
casualties. Another version has it that a group that was on its way to another place, Lalabuan, also in
[5]
Masiu, had been ambushed.
On the following day, Atty. Mangurun Batuampar, claiming to represent the widow of one of the victims,
filed a letter-complaint with the Provincial Fiscal at Marawi City, asking for a full blast preliminary
[6]
investigation of the incident. The letter adverted to the possibility of innocent persons being implicated
by the parties involved on both sides -- none of whom was, however, identified -- and promised that
supporting affidavits would shortly be filed. Immediately the Provincial Fiscal addressed a 1st
indorsement to the respondent Judge, transmitting Atty. Batuampars letter and requesting that all cases
that may be filed relative ** (to the incident) that happened in the afternoon of July 27, 1985, be
[7]
forwarded to his office, which has first taken cognizance of said cases.
No case relative to the incident was, however, presented to the respondent Judge until Saturday, August
10, 1985, when a criminal complaint for multiple murder was filed before him by P.C. Sgt. Jose L. Laru[8]
an, which was docketed as Case No. 1748. On that same day, the respondent Judge examined
personally all (three) witnesses (brought by the sergeant) under oath thru * * (his) closed and direct
[9]
supervision, reducing to writing the questions to the witnesses and the latters answers. Thereafter the
Judge approved the complaint and issued the corresponding warrant of arrest against the fourteen (14)
[10]
petitioners (who were named by the witnesses) and fifty (50) John Does.
An ex-parte motion for reconsideration was filed on August 14, 1985 by Atty. Batuampar (joined by Atty.
Pama L. Muti), seeking recall of the warrant of arrest and subsequent holding of a thorough
investigation on the ground that the Judges initial investigation had been hasty and manifestly
[11]
haphazard with no searching questions having been propounded. The respondent Judge denied the
[12]
motion for lack of basis; hence the present petition.
While they concede the authority of the respondent Judge to conduct a preliminary investigation of the
offenses involved, which are cognizable by Regional Trial Courts, the petitioners and the Solicitor General
argue that the Judge in the case at bar failed to conduct the investigation in accordance with the
[13]
procedure prescribed in Section 3, Rule 112 of the Rules of Court; and that that failure constituted a
denial to petitioners of due process which nullified the proceedings leading to the issuance of the warrant
[14]
for the petitioners arrest. It is further contended that August 10, 1985 was a Saturday during which
Municipal Trial Courts are open from 8:00 a.m. to 1:00 p.m. only, * * * and * * * it would hardly have
been possible for respondent Judge to determine the existence of probable cause against sixty-four (64)
persons whose participations were of varying nature and degree in a matter of hours and issue the
[15]
warrant of arrest in the same day; and that there was undue haste and an omission to ask searching
questions by the Judge who relied mainly on the supporting affidavits which were obviously prepared
[16]
already when presented to him by an enlisted PC personnel as investigator.

63
The petitioners further assert that the respondent Judge conducted the preliminary investigation of the
charges * * * in total disregard of the Provincial Fiscal * * * who, as said respondent well knew, had
already taken cognizance of the matter twelve (12) days earlier and was poised to conduct his own
[17]
investigation of the same; and that issuance of a warrant of arrest against fifty (50) John Does
transgressed the Constitutional provision requiring that such warrants should particularly describe the
[18]
persons or things to be seized.
There can be no debate about the proposition that in conducting a preliminary investigation of any crime
cognizable by the Regional Trial Courts, a judge of an inferior court (other than in Metro-Manila or the
chartered cities, where no authority to conduct preliminary investigation is vested in such officials) must
observe the procedure prescribed in Section 3 of Rule 112, 1985 Rules on Criminal Procedure. And
although not specifically so declared, the procedure mandated by the Rule actually consists of two
phases or stages.
The first phase consists of an ex-parte inquiry into the sufficiency of the complaint and the affidavits and
other documents offered in support thereof. And it ends with the determination by the Judge either: (1)
that there is no ground to continue with the inquiry, in which case he dismisses the complaint and
transmits the order of dismissal, together with the records of the case, to the provincial fiscal; or (2) that
the complaint and the supporting documents show sufficient cause to continue with the inquiry and this
ushers in the second phase.
This second phase is designed to give the respondent notice of the complaint, access to the
complainants evidence and an opportunity to submit counter-affidavits and supporting documents. At this
stage also, the Judge may conduct a hearing and propound to the parties and their witnesses questions
on matters that, in his view, need to be clarified. The second phase concludes with the Judge rendering
his resolution, either for dismissal of the complaint or holding the respondent for trial, which shall be
transmitted, together with the record, to the provincial fiscal for appropriate action.
The procedure above described must be followed before the complaint or information is filed in the
[19]
Regional Trial Court. Failure to do so will result in a denial of due process.
Here, no information has as yet been filed with the Regional Trial Court. There is no pretense that the
preliminary investigation has been completed, insofar as the respondent Judge is concerned, and that he
does not intend to undertake the second phase. In this situation, it cannot be said that he has failed to
observe the prescribed procedure. What has happened is simply that after receiving the complaint and
examining the complainants witnesses, and having come to believe, on the basis thereof, that the
offenses charged had been committed, the respondent Judge issued the warrant now complained of
against the fourteen (14) respondents (now petitioners) named and identified by the witnesses as the
perpetrators of the killings and injuries, as well as against 50 John Does.
The real question, therefore, is whether or not the respondent Judge had the power to issue the warrant
of arrest without completing the entire prescribed procedure for preliminary investigation. Stated
otherwise, is completion of the procedure laid down in Section 3 of Rule 112 a condition sine qua non for
the issuance of a warrant of arrest?
There is no requirement that the entire procedure for preliminary investigation must be completed before

64
[20]

a warrant of arrest may be issued. What the Rule provides is that no complaint or information for an
offense cognizable by the Regional Trial Court may be filed without completing that procedure. But
nowhere is it provided that the procedure must be completed before a warrant of arrest may issue.
Indeed, it is the contrary that is true. The present Section 6 of the same Rule 112 clearly authorizes the
municipal trial court to order the respondents arrest even before opening the second phase of the
investigation if said court is satisfied that a probable cause exists and there is a necessity to place the
respondent under immediate custody in order not to frustrate the ends of justice.
Sec. 6. When warrant of arrest may issue. -***
(b) By the Municipal Trial Court. -- If the municipal trial judge conducting the preliminary investigation is
satisfied after an examination in writing and under oath of the complainant and his witnesses in the form
of searching questions and answers, that a probable cause exists and that there is a necessity of placing
the respondent under immediate custody in order not to frustrate the ends of justice, he shall issue a
[21]
warrant of arrest.
This was equally true under the former rules, where the first phase of the investigation was expressly
denominated preliminary examination to distinguish it from the second phase, or preliminary
investigation proper. Thus, the former Section 6 of Rule 112 provided:
SEC. 6. Warrant of arrest, when issued. -- If the judge be satisfied from the preliminary examination
conducted by him or by the investigating officer that the offense complained of has been committed and
that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or
order for his arrest.
[22]
In Mayuga vs. Maravilla, this Court found occasion to dwell in some detail on the process of preliminary
investigation and, incidentally, to affirm the power of a justice of the peace or municipal judge conducting
a preliminary investigation to order the arrest of the accused after the first stage (preliminary
examination), saying:
Appellant should bear in mind that a preliminary investigation such as was conducted by the Justice of
the Peace has for its purpose only the determination of whether a crime has been committed and whether
there is probable cause to believe the accused guilty thereof, and if so, the issuance of a warrant of
arrest. And it should not be forgotten that a preliminary investigation has two stages: First, a preliminary
examination of the complainant and his witnesses prior to the arrest of the accused; and, second, the
reading to the accused after his arrest of the complaint or information filed against him, and his being
informed of the substance of the evidence against him, after which he is allowed to present evidence in
his favor, if he so desires. Probable cause, in regard to the first stage of preliminary investigation,
depends on the discretion of the judge or magistrate empowered to issue the warrant of arrest. It suffices
that facts are presented to him to convince him, not that a person has committed the crime, but that there
is probable cause to believe that such person committed the crime charged. The proceeding is generally
ex parte unless the defendant desires to be present and while under the old Rules the Justice of the
Peace or investigating officer must take the testimony of the complainant and the latters witnesses under
oath, only the testimony of the complainant shall be in writing and only an abstract of the testimony of the
other is required. Regarding preliminary investigation, it has thus been ruled that the occasion is not for
the full and exhaustive display of the parties evidence; it is for the presentation of such evidence only as
may engender well-grounded belief that an offense has been committed and that the accused is probably
[23]
guilty thereof. * * *

65
The rule on arrest after preliminary examination has, of course, been modified somewhat since the
occurrence of the facts upon which Mayuga was decided, but not to abrogate the authority of the
investigating judge to order such arrest, and only to prescribe the requirement that before he may do so,
he must examine the witnesses to the complaint, the examination to be under oath and reduced to writing
in the form of searching questions and answers. This modification was introduced by Republic Act 3838,
approved June 22, 1963, amending Section 87 of the Judiciary Act of 1948, and the searching questions
and answers requirement is incorporated in the present Section 6 of Rule 112 already quoted.
The argument, therefore, must be rejected that the respondent Judge acted with grave abuse of
discretion in issuing the warrant of arrest against petitioners without first completing the preliminary
investigation in accordance with the prescribed procedure. The rule is and has always been that such
issuance need only await a finding of probable cause, not the completion of the entire procedure of
preliminary investigation.
Also without appreciable merit is petitioners other argument that there was scarcely time to determine
probable cause against sixty-four persons (the fourteen petitioners and fifty Does) within a matter of
hours on a Saturday when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That argument
founders upon the respondent Judges positive affirmations that he had personally and closely examined
[24]
under oath the three witnesses to the complaint and that he had issued the warrant of arrest believing
[25]
that the offense thus filed had been committed. Nothing in the record before this Court belies or
discredits those affirmations which have, besides, the benefit of the legal presumption that official duty
[26]
has been regularly performed. The contention that the witnesses to the complaint had merely sworn
before the respondent Judge to statements prepared beforehand and submitted by a military
[27]
investigator must, in view of the foregoing considerations and for lack of any support in the record, be
dismissed as mere speculation.
The same argument also unwarrantedly assumes that the respondent Judge limited the proceedings on
preliminary examination to the usual Saturday office hours of 8:00 a.m. to 1:00 p.m., in addition to not
making any persuasive showing that such proceedings could not have been completed within that timeframe. For all that appears, said respondent could have put off the 1:00 p.m. adjournment until he had
finished interrogating the witnesses to his satisfaction. And there is really nothing unusual in completing
within a three-hour period the questioning of three witnesses in a preliminary examination to determine
the existence of probable cause.
The record which, lacking proof to the contrary, must be accepted as an accurate chronicle of the
questioned proceedings, shows prima facie that the respondent Judge had personally examined the
witnesses to the complaint, and a consideration of the latters sworn answers to his questions satisfies
this Court that the finding of probable cause against the petitioners was neither arbitrary nor unfounded.
The three witnesses to the complaint, Misandoning Monasprang, a student, Lawandato Ripors, an
engineering graduate, and Sanny Monib, a farmer, gave mutually corroborative accounts of the incident.
Under separate questioning, they declared that they were members of a party that was passing by
Pantao on its way to Lalabuan from Talaguian, all in Masiu, Lanao del Sur, at about 10:00 a.m. on July
27, 1985, when they were ambushed and fired upon by an armed group which included the petitioners
and about fifty other unidentified persons; that five of the party had been killed and two (the witnesses
Lawandato Ripors and Sanny Monib) wounded; that even after they had killed their victims, the

66
ambushers had continued to fire at the dead bodies; that the witnesses managed to escape their
attackers and return to Talaguian, where they informed their relatives about what had happened, and
thence went to the municipal hall in Masiu to report to the authorities; that the dead victims were
recovered only late in the afternoon of that day because the authorities could not penetrate the area and
the ambushers refused to release the bodies; and that the ambush was an offshoot of a grudge between
[28]
the families of the ambushers and those of the victims.
The witnesses named and identified the dead victims as Cadar Monasprang, Macacrao Guiling, Macrang
Hadji Alawi, Alicman Ripors and Malabato Diator. All of them also identified by name each of the fourteen
petitioners as members of the ambush group. The respondent Judge can hardly be faulted for finding
enough cause to hold the petitioners named in the statements of three eyewitnesses to killings
perpetrated in broad daylight.
[29]

In Luna vs. Plaza, this Court ruled that the term searching questions and answers means * * * only, taking into consideration the purpose of the preliminary examination which is to determine
whether there is a reasonable ground to believe that an offense has been committed and the accused is
probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial, such
questions as have tendency to show the commission of a crime and the perpetuator thereof. What would
be searching questions would depend on what is sought to be inquired into, such as: the nature of the
offense, the date, time, and place of its commission, the possible motives for its commission; the subject,
his age, education, status, financial and social circumstances, his attitude toward the investigation, social
attitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financial
and social circumstances, characteristics, etc. The points that are the subject of inquiry may differ than
case to case. The questions, therefore must to a great degree depend upon the Judge making the
investigation. * * *
Upon this authority, and considering what has already been stated above, this Court is not prepared to
question the propriety of the respondent Judges finding of probable cause or substitute its judgment for
his in the matter of what questions to put to the witnesses during the preliminary examination.
Upon the facts and the law, therefore, the warrant of arrest in question validly issued against the
petitioners, such issuance having been ordered after proceedings, to which no irregularity has been
shown to attach, in which the respondent Judge found sufficient cause to commit the petitioners to
answer for the crime complained of.
Insofar, however, as said warrant is issued against fifty (50) John Does not one of whom the witnesses
to the complaint could or would identify, it is of the nature of a general warrant, one of a class of writs long
proscribed as unconstitutional and once anathematized as totally subversive of the liberty of the
[30]
subject. Clearly violative of the constitutional injunction that warrants of arrest should particularly
[31]
describe the person or persons to be seized, the warrant must, as regards its unidentified subjects, be
voided.
The fact that the Provincial Fiscal may have announced his intention of investigating the incident himself
did not, in the view of the Court, legally inhibit the respondent Judge from conducting his own inquiry into
the matter if, as is made to appear here, it was regularly brought before him and no formal complaint was
filed before the Fiscal. Courtesy may have dictated that in those circumstances he leave the investigation
to the Fiscal and simply endorse to the latter the complaint filed with him; duty did not, and if he

67
nonetheless chose to conduct his own investigation, nothing in the rules states or implies that he could
not do so.
Be that as it may, since the action and final resolution of the respondent Judge after completing the
second stage of the preliminary investigation are subject to review by the Provincial Fiscal, practical
considerations of expediency and the avoidance of duplication of work dictate that the latter official be
permitted to take over the investigation even in its present stage.
WHEREFORE, the warrant complained of is upheld and declared valid insofar as it orders the arrest of
the petitioners. Said warrant is voided to the extent that it is issued against fifty (50) John Does. The
respondent Judge is directed to forward to the Provincial Fiscal of Lanao del Sur the record of the
preliminary investigation of the complaint in Criminal Case No. 1748 of his court for further appropriate
action. Without pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Cruz, Gancayco, and Grio-Aquino, JJ., concur.

Pangandaman v. Casar
Facts:
The case originated in Lanao. The offended party was ambushed in Lanao, but hesurvived. Based
on his description, there were around 50 persons who staged theambush from both sides of the
hill. However, he could not recognize anyone of the50. But he filed a case against all 50
ambushers, all JOHN DOES. So the courtissued a warrant of arrest against the 50 John Does.
Issue:
W/N the warrant of arrest is valid? Can a court issue a warrant of arrestagainst an unknown
accused?
Held:
NO it is not valid. It is of the nature of a general warrant, one of a call of writs longprescribed as
unconstitutional and once anathematized as totally subversive of the liberty of the subject. Clearly
violative of the constitutional injunction thatwarrants of arrest should particularly describe the
person or persons to be seized. The warrant as against unidentified subjects will be considered as
null and void.

[ G.R. No. 129651, October 20, 2000 ]

FRANK UY AND UNIFISH PACKING CORPORATION, PETITIONERS, VS. BUREAU OF INTERNAL
REVENUE AND HON. MERCEDES GOZO-DADOLE, RESPONDENTS.
DECISION
KAPUNAN, J.:

68
Petitioners assail the validity of the warrants issued for the search of the premises of the Unifish Packing
Corporation, and pray for the return of the items seized by virtue thereof.
On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of Internal Revenue (BIR) that
petitioners Unifish Packing Corporation and Uy Chin Ho alias Frank Uy were engaged in activities
constituting violations of the National Internal Revenue Code. Abos, who claimed to be a former
[1]
employee of Unifish, executed an Affidavit stating:
1. He has personal knowledge that UNIFISH PACKING CORPORATION (hereinafter referred to as
UNIFISH), a canning factory located at Hernan Cortes Street, under the active management of UY
CHIN HO alias Frank Uy [,] is selling by the thousands of [sic] cartons of canned sardines without
issuing receipt. This is in violation of Sections 253 and 263 of the Internal Revenue Code.
2. This grand scale tax fraud is perpetrated through the following scheme:
(1) Uy Chin Ho a director of UNIFISH buys in bulk from the company;
(2) Being a director, Uy Chin Ho has a lot of clout in the distribution of the canned sardines processed by
UNIFISH;
(3) Uy Chin Ho dictates the value of canned sardines that he orders and buys from UNIFISH without any
receipt of his purchases;
(4) The moment he has the quantity he wants, UNIFISH through Uy Chin Ho delivers to the different
supermarkets such as White Gold, Gaisano, etc.;
(5) Payments made by these tax evading establishments are made by checks drawn payable to cash and
delivered to Uy Chin Ho; These payments are also not receipted (sic);
(6) Uy Chin Ho will then pay UNIFISH for the quantity of sardines he had withdrawn from the corporation;
3. Another fraudulent practice perpetrated by UNIFISH through Uy Chin Ho's direction is the sale of
imported oil locally to different customers. This is a case of smuggling in the sense that UNIFISH, being
an export company registered with the Board of Investments, is enjoying certain exemptions in their
importation of oil as one of the raw materials in its processing of canned tuna for export. These tax
exemptions are granted by the government on the condition that the oil is to be used only in the
processing of tuna for export and that it is not to be sold unprocessed as is to local customers.
4. Another fraudulent practice involves the sales of unused cans; UNIFISH also enjoys tax exemptions in
its purchases of tin cans subject to the condition that these are to be used as containers for its
processed tuna for export. These cans are never intended to be sold locally to other food processing
companies.
5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH PACKING CORPORATION was
then run by the PREMIER INDUSTRIAL & DEVELOPMENT CORPORATION (hereinafter referred to
as PREMIER) [,] which corporation was being controlled by the same majority stockholders as those
now running and controlling UNIFISH; [a]t that time, PREMIER was also committing the same
fraudulent acts as what is being perpetrated by UNIFISH at present.

69
6. The records containing entries of actual volume of production and sales, of both UNIFISH AND
PREMIER, are found in the office of the corporation at its factory site at H. Cortes Street, Mandaue
City. The particular place or spot where these records [official receipts, sales invoices, delivery
receipts, sales records or sales books, stock cards, accounting records (such as ledgers, journals,
cash receipts books, and check disbursements books)] are kept and may be found is best described in
the herein attached sketch of the arrangement of the office's furniture and fixture of the corporation
which is made an integral part hereof and marked as Annex "A",
7. He is executing this affidavit to attest under oath the veracity of the foregoing allegations and he is
reserving his right to claim for reward under the provisions of Republic Act No. 2338.
On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special Investigation Branch of the BIR,
applied for search warrants from Branch 28 of the Regional Trial Court of Cebu. The application sought
permission to search the premises of Unifish.
After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-Dadole issued the disputed
[2]
search warrants. The first is docketed as "SEARCH WARRANT NO. 93-10-79 FOR: VIOLATION OF
SECTION 253" ("Search Warrant A-1"), and consists of two pages. A verbatim reproduction of Search
Warrant A-1 appears below:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF CEBU
7th Judicial Region
Branch 28
Mandaue City
THE PEOPLE OF THE
PHILIPPINES,
Plaintiff,
SEARCH WARRANT NO. 93-1079 FOR:
VIOLATION OF SEC. 253
- versus -

UY CHIN HO alias FRANK UY,

Unifish Packing Corporation
Hernan Cortes St., Cebu City
x------------------------/
(with sketch)
SEARCH WARRANT
TO ANY PEACE OFFICER:
G R E E T I N G S:
It appearing to the satisfaction of the undersigned, after examination underoath (sic), Nestor N. Labaria,
Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Abos that there is a (sic) probable
cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been

70
committed and there is good and sufficient reason to believe that Uy Chin Ho c/o Unifish Packing
Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the following:
1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales
Books or Records; Provisional & Official Receipts;
2. Production Record Books/Inventory Lists [,] Stock Cards;
3. Unregistered Delivery Receipts;
4. Unregistered Purchase & Sales Invoices;
5. Sales Records, Job Order;
6. Corporate Financial Records; and
7. Bank Statements/Cancelled Checks
You are hereby commanded to make an immediate search at any time of day or night of said premises
and its immediate vicinity and to forthwith seize and take possession of the articles above-mentioned and
other properties relative to such violation and bring said properties to the undersigned to be dealt with as
the law directs.
st

WITNESS MY HAND this 1 day of October, 1993.

(sgd.)
MERCEDES GOZODADOLE
Judge
[3]

The second warrant is similarly docketed as "SEARCH WARRANT 93-10-79 FOR: VIOLATION OF
SEC. 253" ("Search Warrant A-2"). Search Warrant A-2, reproduced below, is almost identical in content
to Search Warrant A-1, save for the portions indicated in bold print. It consisted of only one page.
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF CEBU
th
7 Judicial Region
Branch 28
Mandaue City
THE PEOPLE OF THE
PHILIPPINES,
Plaintiff,
SEARCH WARRANT NO. 93-1079 FOR:
- versus UY CHIN HO alias FRANK UY,
and
Unifish Packing Corporation
Hernan Cortes St., Mandaue City
x------------------------

VIOLATION OF SEC. 253

71
-/
(with sketch)
SEARCH WARRANT
TO ANY PEACE OFFICER:
G R E E T I N G S:
It appearing to the satisfaction of the undersigned, after examination underoath [sic], Nestor N. Labaria,
Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Abos that there is a [sic] probable
cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been
committed and there is good and sufficient reason to believe that Uy Chin Ho alias Frank Uy and Unifish
Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the
following:
1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales
Books or Records; Provisional & Official Receipts;
2. Production Record Books/Inventory Lists [,] Stock Cards;
3. Unregistered Delivery Receipts;
4. Unregistered Purchase & Sales Invoices;
5. Sales Records, Job Order;
6. Corporate Financial Records; and
7. Bank Statements/Cancelled Checks
You are hereby commanded to make an immediate search at any time of day or night of said premises
and its immediate vicinity and to forthwith seize and take possession of the articles above-mentioned and
other properties relative to such violation and bring said properties to the undersigned to be dealt with as
the law directs.
st

WITNESS MY HAND this 1 day of October, 1993.

(sgd.)
MERCEDES GOZODADOLE
Judge
[4]

Judge Gozo-Dadole issued a third warrant, which was docketed as "SEARCH WARRANT 93-10-80
FOR: VIOLATION OF SEC. 238 in relation to SEC. 263" (hereinafter, "Search Warrant B"). Except for the
docket number and the designation of the crime in the body of the warrant ("Section 238 in relation to
Sec. 263 - non-issuance of sales invoice and use and possession of unregistered delivery receipts and/or
sales invoices"), Search Warrant B is a verbatim reproduction of Search Warrant A-2.
On the strength of these warrants, agents of the BIR, accompanied by members of the Philippine National
Police, on 2 October 1993, searched the premises of the Unifish Packing Corporation. They seized,
among other things, the records and documents of petitioner corporation. A return of said search was
duly made by Nestor Labaria with the RTC of Cebu , Branch 28.

72
On 8 February 1995, the BIR filed against petitioners a case before the Department of Justice. The
records, however, do not reveal the nature of this case.
On 31 March 1995, petitioners filed motions to quash the subject search warrants with Branch 28 of the
Cebu RTC.
The RTC, however, denied petitioners' motions to quash as well as their subsequent motion for
reconsideration, prompting petitioners to file a petition for certiorari with the Court of Appeals (CA). The
CA dismissed their petition, holding that petitioners failed to comply with Section 2(a), Rule 6 of the
Revised Internal Rules of the Court of Appeals (RIRCA), which states:
a. What Should be Filed. - The petition shall be filed in seven (7) legible copies and a copy thereof shall
be served on each of the respondents, and must be accompanied by a certified true copy of the decision
or order complained of and true copies of the pleadings and other pertinent documents and papers. (As
amended by S.Ct. Res., dated November 24, 1992).
The CA found that petitioners did not submit certified true copies of (1) the Motions to Quash, (2) the
Motion for Reconsideration, and (3) the Affidavit of Rodrigo Abos.
The CA also held that certiorari was not the proper remedy to question the resolution denying the motion
to quash.
In this case now before us, the available remedies to the petitioners, assuming that the Department of
Justice will eventually file the case, are: a petition for reinvestigation; the right to post bail; a Motion to
Quash the Information; and in case of denial, an appeal, after judgment on the merits, or after the case
shall have been tried. This brings us to the case of Lai vs. Intermediate 220 SCRA 149 and the
pronouncement, thus:
Criminal Procedure: Certiorari: Certiorari should not be allowed where petitioner has other remedies
available. -- Anent the remedy resorted to by petitioners (referring to the petition for certiorari) from the
Regional Trial Court of Negros Oriental presided by Judge Diez, the same should not have been granted.
Petitioners were not without plain, speedy and adequate remedies in the ordinary course of law against
Judge Lomeda's order for their arrest. These remedies are as enumerated by respondent appellate court
in its decision: "1. they can post bail for their provisional release; 2. They can ask the Provincial Fiscal for
a reinvestigation of the charge against them. If unsatisfied with the fiscal's resolution they can ask for a
review by the Minister of Justice; (Sec. 1(), RA 5180 as amended by P.D. 911); 3. if their petition for
review does not prosper, they can file a motion to quash the information in the trial court. (Rule 117,
Rules of Court). 4. If the motion is denied, they can appeal the judgment of the court after the case shall
have been tried on the merits. x x x
Where motion to quash is denied, remedy is not certiorari, but to go to trial.-- Moreover, in the case of
Acharon vs. Purisima, this Court held that when a motion to quash a criminal case is denied, the remedy
is not certiorari but to go to trial without prejudice to reiterating the special defenses involved in said
Motion. In the event that an adverse decision is rendered after trial on the merits, an appeal therefrom
should be the next legal step.
xxx
In this case now before Us, there is no pretention [sic] that the Court issued the Search Warrants without
jurisdiction. On the contrary, it had jurisdiction. The argument therefore that the Court committed an error
in not describing the persons or things to be searched; that the Search Warrants did not describe with

73
particularity the things to be seized/taken; the absence of probable cause; and for having allegedly
condoned the discriminating manner in which the properties were taken, to us, are merely errors in the
[5]
Court's finding, certainly not correctible by certiorari, but instead thru an appeal.
In any event, the CA ruled, no grave abuse of discretion amounting to lack of jurisdiction was committed
by the RTC in the issuance of the warrants.
As petitioners' motion for reconsideration proved futile, petitioners filed the instant petition for review.
Petitioners claim that they did submit to the CA certified true copies of the pleadings and documents listed
above along with their Petition, as well as in their Motion for Reconsideration. An examination of the
CA Rollo, however, reveals that petitioners first submitted the same in their Reply, after respondents, in
their Comment, pointed out petitioners' failure to attach them to the Petition.
Nevertheless, the CA should not have dismissed the petition on this ground although, to its credit, it did
touch upon the merits of the case. First, it appears that the case could have been decided without these
pleadings and documents. Second, even if the CA deemed them essential to the resolution of the case, it
[6]
could have asked for the records from the RTC. Third, in a similar case, we held that the submission of
a document together with the motion for reconsideration constitutes substantial compliance with Section
3, Rule 46 of the Rules of Court, requiring the submission of a certified true copy of "material portions of
the record as are referred to [in the petition], and other documents relevant or pertinent thereto" along
with the petition. So should it be in this case, especially considering that it involves an alleged violation of
a constitutionally guaranteed right. The rules of procedure are not to be applied in a very rigid, technical
sense; rules of procedure are used only to help secure substantial justice. If a technical and rigid
[7]
enforcement of the rules is made, their aim could be defeated.
The CA likewise erred in holding that petitioners cannot avail of certiorari to question the resolution
denying their motions to quash the subject search warrants. We note that the case of "Lai vs.
Intermediate," cited by the appellate court as authority for its ruling does not appear in "220 SCRA 149."
[8]
The excerpt of the syllabus quoted by the court, as observed by petitioners, appears to have been taken
from the case of Yap vs. Intermediate Appellate Court, 220 SCRA 245 (1993). Yap, however, is
inapplicable since that case involved a motion to quash a complaint for qualified theft, not a motion to
quash a search warrant.
[9]
The applicable case is Marcelo vs. De Guzman, where we held that the issuing judge's disregard of the
requirements for the issuance of a search warrant constitutes grave abuse of discretion, which may be
remedied by certiorari:
Expressly announced in Section 1, Rule 65 of the Rules of Court is the general rule that certiorari is
available where a tribunal or officer exercising judicial functions "has acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law."
In the light of the findings of the lower court, herein above quoted, it is indisputable that Judge de
Guzman gravely abused his discretion in issuing the said search warrant. Indeed, he acted whimsically
and capriciously when he ignored the explicit mandate of Section 3, Rule 126 of the Rules of Court that "a
search warrant shall not issue but upon probable cause in connection with one specific offense to be
determined by the municipal or city 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; and that "no search warrant shall issue for more than one specific offense."

74
The utter disregard by Judge de Guzman of the requirements laid down by the said rule renders the
warrant in question absolutely null and void. It has been held that where the order complained of is a
patent nullity, a petition for certiorari and mandamus may properly be entertained despite the existence of
the remedy of appeal.
Moreover, an appeal from the order of Judge de Guzman would neither be an adequate nor speedy
remedy to relieve appellee of the injurious effects of the warrant. The seizure of her personal property had
resulted in the total paralization of the articles and documents which had been improperly seized. Where
the remedy of appeal cannot afford an adequate and expeditious relief, certiorari can be allowed as a
mode of redress to prevent irreparable damage and injury to a party.
This Court had occasion to reiterate the above pronouncement in Silva vs. Presiding Judge, RTC of
[10]
[11]
Negros Oriental, Br. XXXIII, which also involved a special civil action for certiorari:
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional requirement that
he must determine the existence of probable cause by examining the applicant and his witnesses in the
form of searching questions and answers. His failure to comply with this requirement constitutes grave
abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114
SCRA 657, "the capricious disregard by the judge in not complying with the requirements before issuance
of search warrants constitutes grave abuse of discretion".
In this case, petitioners alleged in their petition before the CA that the issuing judge violated the pertinent
provisions of the Constitution and the Rules of Court in issuing the disputed search warrants, which, if
true, would have constituted grave abuse of discretion. Petitioners also alleged that the enforcers of the
warrants seized almost all the records and documents of the corporation thus resulting in the paralysis of
its business. Appeal, therefore, would not be an adequate remedy that would afford petitioners
expeditious relief.
We now proceed to the merits of the case.
Section 2, Article III of the Constitution guarantees the right of the people against unreasonable searches
and seizures:
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.
In relation to the above provision, Rule 126 of the Rules of Court provides:
SEC. 3. Requisite for issuing search warrant. - A search warrant shall not issue but upon probable cause
in connection with one specific offense to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized.
SEC. 4. Examination of complainant; record. - The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath the complainant and
any witnesses he may produce on facts personally known to them and attach to the record their sworn
statements together with any affidavits submitted.

75
A search warrant must conform strictly to the requirements of the foregoing constitutional and statutory
provisions. These requirements, in outline form, are:
(1) the warrant 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
[12]
seized.
The absence of any of these requisites will cause the downright nullification of the search
[13]
warrants. The proceedings upon search warrants must be absolutely legal, "for there is not a
description of process known to the law, the execution of which is more distressing to the citizen. Perhaps
there is none which excites such intense feeling in consequence of its humiliating and degrading effect."
The warrants will always be construed strictly without, however, going the full length of requiring technical
accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer
[14]
undertakes to justify under it.
Petitioners contend that there are several defects in the subject warrants that command their nullification.
They point out inconsistencies in the description of the place to be searched in Search Warrant A-1, as
well as inconsistencies in the names of the persons against whom Search Warrants A-1 and A-2 were
issued. That two search warrants (Search Warrants A-1 and A-2) were issued for the same crime, for the
same place, at a single occasion is cited as another irregularity. Petitioners also dispute the existence of
probable cause that would justify the issuance of the warrants. Finally, they claim that the things to be
seized were not described with particularity. These defects, according to petitioners, render the objects
[15]
seized inadmissible in evidence.
Inconsistencies in the
description of the
place to be searched
Petitioners observe that the caption of Search Warrant A-1 indicates the address of Uy Chin Ho alias
Frank Uy as "Hernan Cortes St., Cebu City" while the body of the same warrant states the address as
"Hernan Cortes St.,Mandaue City." Parenthetically, Search Warrants A-2 and B consistently state the
address of petitioner as "Hernan Cortes St., Mandaue City."
The Constitution requires, for the validity of a search warrant, that there be a particular description of "the
[16]
place to be searched and the persons of things to be seized." The rule is that a description of a place to
be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify
[17]
[18]
the place intended and distinguish it from other places in the community. Any designation or
description known to the locality that points out the place to the exclusion of all others, and on inquiry
[19]
leads the officers unerringly to it, satisfies the constitutional requirement. Thus, in Castro vs.
[20]
Pabalan, where the search warrant mistakenly identified the residence of the petitioners therein as
Barrio Padasil instead of the adjoining Barrio Maria Cristina, this Court "admitted that the deficiency in
the writ is not of sufficient gravity to call for its invalidation."
In this case, it was not shown that a street similarly named Hernan Cortes could be found in Cebu City.
Nor was it established that the enforcing officers had any difficulty in locating the premises of petitioner

76
corporation. That Search Warrant A-1, therefore, inconsistently identified the city where the premises to
be searched is not a defect that would spell the warrant's invalidation in this case.
Inconsistencies in the
description of the
persons named in the
two warrants
Petitioners also find fault in the description of the names of the persons in Search Warrants A-1 and A-2.
Search Warrant A-1 was issued solely against "Uy Chin Ho alias Frank Uy." Search Warrant A-2, on the
other hand, was directed against "UY CHIN HO alias FRANK UY, and Unifish Packing Corporation."
These discrepancies are hardly relevant.
[21]

In Miller v. Sigler, it was held that the Fourth Amendment of the United States Constitution, from which
Section 2, Article III of our own Constitution is historically derived, does not require the warrant to name
the person who occupies the described premises. Where the search warrant is issued for the search of
specifically described premises only and not for the search of a person, the failure to name the owner or
occupant of such property in the affidavit and search warrant does not invalidate the warrant; and where
the name of the owner of the premises sought to be searched is incorrectly inserted in the search
warrant, it is not a fatal defect if the legal description of the premises to be searched is otherwise correct
[22]
so that no discretion is left to the officer making the search as to the place to be searched.
Since, in the case at bar, the warrant was issued not for search of the persons owning or occupying the
premises, but only a search of the premises occupied by them, the search could not be declared unlawful
or in violation of the constitutional rights of the owner or occupants of the premises, because of
[23]
inconsistencies in stating their names.
Two warrants issued
at one time for one
crime and one place
In any event, Search Warrant A-1 should be deemed superseded by Search Warrant A-2.
Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial court for the same crime
(violation of "SEC. 253" of the National Internal Revenue Code). It appears, however, that Search
Warrant A-2 was issued merely to correct the inconsistencies in the address in Search Warrant A-1, as
well as to include Unifish Packing Corporation as a party against whom the warrant was issued. Search
Warrant A-2 was evidently an attempt by the issuing judge to be more precise in the names of the
persons against whom the warrant was issued and in the description of the place to be searched. Indeed,
it would be absurd for the judge to issue on a single occasion two warrants authorizing the search of a
single place for a single offense. Inasmuch as the apparent intent in issuing Search Warrant A-2 was to
supersede Search Warrant A-1, the latter should be deemed revoked by the former.
The alleged absence of
probable cause
Petitioners claim there was no probable cause for Judge Gozo-Dadole to issue the subject search
warrants.
Probable cause is defined as such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the objects sought in connection
[24]
with the offense are in the place sought to be searched.

77
In the determination of probable cause, the Constitution and the Rules of Court require an examination of
the witnesses under oath. The examination must be probing and exhaustive, not merely routine or pro
forma. The examining magistrate must not simply rehash the contents of the affidavit but must make his
[25]
own inquiry on the intent and justification of the application. Asking of leading questions to the
deponent in an application for search warrant, and conducting of examination in a general manner, would
[26]
not satisfy the requirements for issuance of a valid search warrant.
The witnesses, in turn, must testify under oath to facts of their own personal knowledge. The oath
required must refer to the truth of the facts within the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince the committing magistrate, not the individual
making the affidavit and seeking the issuance of the warrant, of the existence of probable
[27]
cause. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion
[28]
or belief.
It may be recalled that before issuing the warrants, the judge deposed two witnesses, namely, Nestor
Labaria of the BIR, and Rodrigo Abos, who claimed to be an old employee of Unifish. Petitioners claim
that the testimonies of Labaria and Abos are hearsay. We agree with this contention, but only as to the
testimony of Labaria, who stated during the examination:
Q.

Do you know of a certain Uy Chin Ho alias Frank Uy?

A.

No.

Q.
A.
Q.
A.

Do you know his establishment known as Unifish

Packing Corporation?
I have only heard of that thru the affidavit of our
informer, Mr. Abos.
Why are you applying for search warrant in the
premises of Unifish Packing Corporation?
Because of that information we received that they are
using only delivery receipts instead of the legal sales
invoices. It is highly indicative of fraud.

Q.

From where did you get that information?

A.

From our informer, the former employee of that

[29]
establishment.

The above portion of the transcript shows that Labaria's knowledge of the alleged illegal activities of
petitioners was acquired not through his own perception but was merely supplied by Abos. Therefore, the
deposition of Labaria, which is based on hearsay, standing alone, cannot justify the issuance of the
[30]
search warrants.
The application for the warrants, however, is not based solely on Labaria's deposition but is supported by
that of Abos, whose knowledge of petitioners' alleged illegal practices was apparently obtained during his
employment with Unifish. In his deposition, Abos detailed the schemes employed by Frank Uy and Unifish
to evade the payment of taxes, and described the place where the documents supposedly evidencing
these schemes were located:
Q

Do you know Frank Uy?

Yes.

Why do you know him?

Because I were (sic) an employee of his from 1980

until August of 1993.

78

Where is this Unifish Packing Corporation located?

Hernan Cortes St.

What is it being engaged of?

It is engaged in canning of fish.

You have executed an affidavit here to the effect that

it seems that in his business dealings that he is
actually doing something that perpetrated tax
evasion. Is that correct?
Yes.

How is it done?

As an officer, he is an active member of the

corporation who is at the same time making his
authority as appointing himself as the distributor of
the company's products. He sells these products thru
supermarkets in Visayas and Mindanao, in fact, the
whole Philippines. He makes it appear that it is the
company which is selling when actually it is him
selling the goods and he does not issue any invoices.

Since he does not issue any invoices, how is it done?

Thru delivery receipts.

Is the delivery receipt official?

No. It is unregistered.

For how long has this been going on?

A
Q

As far as I know, it is still in 1986 since we started

producing the sardines.
When was the last time that you observed that that is
what he is doing?

August, 1993, last month.

How did you happen to know about this last month?

Because he delivered to certain supermarkets and

the payments of that supermarket did not go directly
to the company. It went to him and he is the one who
paid the company for the goods that he sold.
Can you tell this Court the name of that certain
supermarkets?

Q
A

White Gold and Gaisano.

How did you know this fact?

As a manager of the company I have access to all

the records of that company for the last three years. I
was the Operating Chief.

Until now?

No. I was separated already.

When?

79

August, 1993. Q How does he do this manipulation?

He sells the goods to the supermarkets afterwhich

the company, Unifish will deliver to his customers,
then his customers will pay directly to him and in
turn, he pays to the company.
And these transactions, were they reflected in their
books of account or ledger or whatever?
It is written but it is supposed to be a secret
transaction. It is not for the public, not for the BIR but
it is only for the purpose of keeping the transactions
between the company and him. It is not made to be
shown to the BIR.
In that books of account, is it reflected that they have
made some deliveries to certain supermarkets?

Q
A

Q
A
Q
A
Q
A
Q

Yes.
For the consumption of the BIR what are the papers
that they show? .
It is the private accounting firm that prepares
everything.
Based on what?
Based on some fictitious records just as they wish to
declare.
In your affidavit you stated that there are sales
invoices, official receipts, delivery receipts, sales
records, etc. These documents are records that you
have stated, in your affidavit, which are only for the
consumption of the company?

Yes, not for the BIR

Where are they kept now?

They are kept on the table which I have drawn in the

sketch. This is the bird's eyeview (sic) of the whole
office. When you enter thru the door this Gina Tan is
the one recording all the confidential transactions of
the company. In this table you can find all the ledgers
and notebooks.

This sketch is a blow-up of this portion, Exh. "A"?

Yes. Exh. "B" is the blow-up of Exh. "A" inside the

office. In this blow-up there are four personnel plus
one new personnel. Gina Tan collects all the records
from this girl and this girl makes the statements. This
first girl delivers the receipts. The second girl
prepares the bill of lading. The third girl keeps the
inventory of all the stocks. This sketch here is the
bodega where the records are kept. The records
from these people are stored in this place which is
marked as "C".
So what you want to impress on that now is that only
current records are kept by Gina because according
to you the whole records are already placed in the
bodega?

80

Yes.

But how can you enter the bodega?

Here, from the main entrance there is a door which

will lead to this part here. If you go straight there is a
bodega there and there is also a guard from this exit
right after opening the door.
The problem is that, when actually in August have
you seen the current records kept by Gina?
I cannot exactly recall but I have the xerox copies of
the records.

Q
A
Q

Where are they now?

They are in my possession (witness handling [sic] to

the Court a bunch of records).
The transactions that are reflected in these xerox
copies that you have given me, especially this one
which seems to be pages of a ledger, they show that
these are for the months of January, February,
March, April and May. Are these transactions
reflected in these xerox copies which appear in the
ledger being shown to the BIR?

A
Q
A
Q

As far as I know, it did not appear.

What about this one which says Columnar Book
Cash Receipt for the month of January, what does it
show?
It shows that Frank Uy is the one purchasing from
the company and these are his customers.
Do these entries appear in the columnar books which
are the basis for the report to the BIR?

As far as I know, it does not reflect.

What are these xerox copies of checks?

I think we cannot trace it up. These ones are the

memos received by Unifish for payment of sardines.
This is the statement of the company given to Uy
Chin Ho for collection.
It is also stated in your affidavit that the company
imported soya oil. How is it done?
The company imports soya oil to be used as a
component in the processing of canned tuna for
export. The company enjoys certain BOI privilege
and so it is tax free. As far as I know, they profit more
to dispose the product locally. Whatever excess of
this soya oil are sold to another company.

Q
A

Is that fact reflected in the xerox copies?

No. I have the actual delivery receipt.

In other words, the company imports soya oil

supposedly to be used as a raw material but instead
they are selling it locally?
Yes. ([W]itness showing DR No. 3053 dated
November 13, 1991.) This delivery receipt was the

81

A
Q
A

delivery receipt to Celebes Canning Corp. of the 90

grams soya oil.
In other words, this soya oil should have to be used
by Unifish but instead they are seeling (sic) it?
Yes, at a profit.
You also said that there is tax evasion in the selling
of cans. What do you mean by this?
There is another privileged [sic] by the BOI for a
special price given to packaging materials. When you
export the product there is a 50% price difference.
Now, taking that advantage of that exemption, they
sold it to certain company here, again to Virginia
Farms.

Do you have proof to that effect?

No, but we can get it there.

Will that fact be shown in any listed articles in the

application for search warrant since according to you,
you have seen this manipulation reflected on the
books of account kept by Gina? Are you sure that
these documents are still there?

Yes. I have received information.

COURT: Alright.

[31]

Abos stated that, as former Operating Chief of Unifish, he had access to the company records, and even
showed the issuing judge photocopies thereof. Thus, we reject the contention that this witness did not
have personal knowledge of the facts to which he testified. The contents of the deposition clearly
demonstrate otherwise.
The deposition also shows that, contrary to petitioners' submission, the inquiries made by the judge were
far from leading or being a rehash of the witness' affidavit. We find such inquiries to be sufficiently
probing.
Alleged lack of
particularity in the
description of the
things seized
Petitioners note the similarities in the description of the things to be seized in the subject warrants and
[32]
[33]
those inStonehill vs. Diokno, Bache & Co. (Phil.), Inc. vs. Ruiz, and Asian Surety & Insurance Co.,
[34]
Inc. vs. Herrera.
In Stonehill, the effects to be searched and seized were described as:
"Books of accounts, financial records, vouchers, journals correspondence, receipts, ledgers, portfolios,
credit journals, typewriters, and other documents and/or papers showing all business transactions
including disbursement receipts, balance sheets and related profit and loss statements."
This Court found that the foregoing description failed to conform to the requirements set forth by the
Constitution since:

82
x x x the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit command of our Bill of Rights - that the things
to be seized be particularly described - as well as tending to defeat its major object: the elimination
of general warrants.
In Bache & Co., this Court struck down a warrant containing a similar description as those in Stonehill:
The documents, papers, and effects sought to be seized are described in Search Warrant No. 2-M-70 in
this manner:
"Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements
books, customers' ledgers); receipts for payments received; certificates of stocks and securities;
contracts, promissory notes and deeds of sale; telex and coded messages; business communications;
accounting and business records; checks and check stubs; records of bank deposits and withdrawals;
and records of foreign remittances, covering the years 1966 to 1970."
The description does not meet the requirement in Art. III, Sec. 1, of the Constitution, and of Sec. 3, Rule
126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized.
xxx
In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion to explain the
purpose of the requirement that the warrant should particularly describe the place to be searched and the
things to be seized, to wit: "x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97)
specifically require that a search warrant should particularly describe the place to be searched and the
things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized
to those, and only those, particularly described in the search warrant - to leave the officers of the law with
no discretion regarding what articles they shall seize, to the end that `unreasonable searches and
seizures' may not be made, - that abuses may not be committed. That is the correct interpretation of this
constitutional provision borne out by the American authorities."
The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued
in this case.
A search warrant may be said to particularly describe the things to be seized when the description therein
is as specific as the circumstances will ordinarily allow (People vs. Rubio, 57 Phil, 384); or when the
description expresses a conclusion of fact - not of law - by which the warrant officer may be guided in
making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are
limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2,
Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of the foregoing
tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant
must necessarily have some evidence, other than those articles, to prove the said offense; and the
articles subject of search and seizure should come in handy merely to strengthen such evidence. In this
event, the description contained in the herein disputed warrant should have mentioned, at least, the
dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of
stocks and securities, contracts, promissory notes, deeds of sale, messages and communications,
checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the
warrant.

83
In Asian Surety & Insurance Co., Inc. vs. Herrera, the description of the things to be seized, i.e., "Fire
Registers, Loss, Bordereau, Adjusters' Report, including subrogation receipts and proof of loss, Loss
Registers, Book of Accounts including cash receipts and disbursements and general ledger, etc." was
held to be "an omnibus description" and, therefore, invalid:
x x x Because of this all embracing description which includes all conceivable records of petitioner
corporation, which if seized x x x, could paralyze its business, petitioner in several motions filed for early
resolution of this case, manifested that the seizure of TWO carloads of their papers has paralyzed their
business to the grave prejudice of not only the company, its workers, agents, employees but also of its
numerous insured and beneficiaries of bonds issued by it, including the government itself, and of the
general public. And correlating the same to the charges for which the warrant was issued, We have
before Us the infamous general warrants of old.
In the case at bar, the things to be seized were described in the following manner:
1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales
Books or Records; Provisional & Official Receipts;
2. Production Record Books/Inventory Lists [,] Stock Cards;
3. Unregistered Delivery Receipts;
4. Unregistered Purchase & Sales Invoices;
5. Sales Records, Job Order;
6. Corporate Financial Records; and
7. Bank Statements/Cancelled Checks
We agree that most of the items listed in the warrants fail to meet the test of particularity, especially since
witness Abos had furnished the judge photocopies of the documents sought to be seized. The issuing
judge could have formed a more specific description of these documents from said photocopies instead of
merely employing a generic description thereof. The use of a generic term or a general description in a
warrant is acceptable only when a more specific description of the things to be seized is unavailable. The
[35]
failure to employ the specificity available will invalidate a general description in a warrant. The use by
the issuing judge of the terms "multiple sets of books of accounts, ledgers, journals, columnar books,
cash register books, sales books or records, provisional & official receipts," "production record
books/inventory lists, stock cards," "sales records, job order," "corporate financial records," and "bank
statements/cancelled checks" is therefore unacceptable considering the circumstances of this case.
As regards the terms "unregistered delivery receipts" and "unregistered purchase & sales invoices,"
however, we hold otherwise. The Solicitor General correctly argues that the serial markings of these
documents need not be specified as it is not possible to do so precisely because they are
[36]
unregistered. Where, by the nature of the goods to be seized, their description must be rather general,
it is not required that a technical description be given, as this would mean that no warrant could issue.
Taking into consideration the nature of the articles so described, it is clear that no other more adequate
and detailed description could have been given, particularly because it is difficult to give a particular
[37]
description of the contents thereof. Although it appears that photocopies of these unregistered
documents were among those handed by Abos to the issuing judge, it would be impractical to require the
latter to specify each and every receipt and invoice, and the contents thereof, to the minutest detail.

84
The general description of most of the documents listed in the warrants does not render the entire warrant
void. Insofar as the warrants authorize the search and seizure of unregistered delivery receipts and
unregistered purchase and sales invoices, the warrants remain valid. The search warrant is severable,
and those items not particularly described may be cut off without destroying the whole warrant. In United
[38]
States v. Cook, the United States Court of Appeals (Fifth Circuit) made the following pronouncement:
x x x. The leading decision is Aday v. Superior Court, 53 Cal.2d 789, 362 P.2d 47, 13 Cal.Rptr. 415
(1961). In Aday, a warrant was issued authorizing the seizure of two particularly described books and
myriad other generally described items. On appeal, the California Supreme Court held that only the books
were particularly described in the warrant and lawfully seized. The court acknowledged that the warrant
was flawed, but rather than suppress everything seized, the court chose to sever the defective portions of
the warrant and suppress only those items that were not particularly described.
Although the warrant was defective x x x it does not follow that it was invalid as a whole. Such a
conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must
be condemned merely because the warrant was defective with respect to other articles. The invalid
portions of the warrant are severable from the authorization relating to the named books x x x.
The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects
concerning other articles.
xxx
x x x We agree with the reasoning of the Supreme Court of California and the majority of state courts that
have considered this question and hold that in the usual case the district judge should sever the infirm
portion of the search warrant as passes constitutional muster. See United States v. Giresi, 488 F.Supp.
445, 459-60 (D.N.J.1980). Items that were not described with the requisite particularity in the warrant
should be suppressed, but suppression of all of the fruits of the search is hardly consistent with the
purposes underlying exclusion. Suppression of only the items improperly described prohibits the
Government from profiting from its own wrong and removes the court from considering illegally obtained
evidence. Moreover, suppression of only those items that were not particularly described serves as an
effective deterrent to those in the Government who would be tempted to secure a warrant without the
necessary description. As the leading commentator has observed, "it would be harsh medicine indeed if a
warrant which was issued on probable cause and which did particularly describe certain items were to be
invalidated in toto merely because the affiant and the magistrate erred in seeking and permitting a search
for other items as well." 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 4.6(f)
(1978).
Accordingly, the items not particularly described in the warrants ought to be returned to petitioners.
Petitioners allege that the following articles, though not listed in the warrants, were also taken by the
enforcing officers:
1. One (1) composition notebook containing Chinese characters,"
2. Two (2) pages writing with Chinese characters,
3. Two (2) pages Chinese character writing,
4. Two (2) packs of chemicals,

85
5. One (1) bound gate pass,
[39]

6. Surety Agreement.
In addition, the searching party also seized items belonging to the Premier Industrial and Development
Corporation (PIDC), which shares an office with petitioner Unifish.
The things belonging to petitioner not specifically mentioned in the warrants, like those not particularly
described, must be ordered returned to petitioners. In order to comply with the constitutional provisions
regulating the issuance of search warrants, the property to be seized under a warrant must be particularly
[40]
[41]
described therein and no other property can be taken thereunder. In Tambasen vs. People, it was
held:
Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the
parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution
requires that a search warrant should particularly describe the things to be seized. "The evident purpose
and intent of the requirement is to limit the things to be seized to those, and only those, particularly
described in the search warrant, to leave the officers of the law with no discretion regarding what articles
they should seize, to the end that unreasonable searches and seizures may not be made and that abuses
may not be committed" (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.], Inc. v. Ruiz, 37
SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also
aimed at preventing violations of security in person and property and unlawful invasions of the sanctity of
the home, and giving remedy against such usurpations when attempted (People v. Damaso, 212 SCRA
547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).
Clearly then, the money which was not indicated in the search warrant, had been illegally seized from
petitioner. The fact that the members of the police team were doing their task of pursuing subversives is
not a valid excuse for the illegal seizure. The presumption juris tantum of regularity in the performance of
official duty cannot by itself prevail against the constitutionally protected right of an individual (People v.
Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the
foundation of the power to search and seize, such power must be exercised and the law enforced without
transgressing the constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v.
Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it inBagahilog v. Fernandez, 198 SCRA
614 (1991), "[z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the
Constitution itself abhors."
The seizure of the items not specified in the warrants cannot be justified by the directive in the
penultimate paragraph thereof to "seize and take possession of other properties relative to such
violation," which in no way can be characterized as a particular description of the things to be seized.
As regards the articles supposedly belonging to PIDC, we cannot order their return in the present
proceedings. The legality of a seizure can be contested only by the party whose rights have been
impaired thereby, and the objection to an unlawful search and seizure is purely personal and cannot be
[42]
availed of by third parties.
WHEREFORE, the Resolutions of respondent Court of Appeals dated 27 June 1996 and 14 May 1987,
affirming the Order of the Regional Trial Court dated 17 July 1995, are hereby AFFIRMED insofar as said
Resolutions upheld the validity of the subject Search Warrants authorizing the seizure of the unregistered
delivery receipts and unregistered purchase and sales invoices, but REVERSED with respect to the rest
of the articles subject of said warrants. The respondent Bureau of Internal Revenue is hereby ordered to

86
return to petitioners all items seized from the subject premises and belonging to petitioners, except the
unregistered delivery receipts and unregistered purchase and sales invoices.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

Frank Uy & Unifish Packing Corp. vs Bureau of Internal Revenue et al

Search and Seizure Requisites of a Valid Search Warrant
In Sept 1993, Rodrigo Abos, a former employee of UPC reported to the BIR that Uy Chin Ho aka Frank
Uy, manager of UPC, was selling thousands of cartons of canned cartons without issuing a report. This is
a violation of Sec 253 & 263 of the Internal Revenue Code. In Oct 1993, the BIR requested before RTC
Cebu to issue a search warrant. Judge Gozo-Dadole issued a warrant on the same day. A second
warrant was issued which contains the same substance but has only one page, the same was dated Oct
st

1 2003. These warrants were issued for the alleged violation by Uy of Sec 253. A third warrant was
issued on the same day for the alleged violation of Uy of Sec 238 in relation to sec 263. On the strength
of these warrants, agents of the BIR, accompanied by members of the PNP, on 2 Oct 1993, searched the
premises of the UPC. They seized, among other things, the records and documents of UPC. A return of
said search was duly made by Labaria with the RTC of Cebu. UPC filed a motion to quash the warrants
which was denied by the RTC. They appealed before the CA via certiorari. The CA dismissed the appeal
for a certiorari is not the proper remedy.
ISSUE: Whether or not there was a valid search warrant issued.
HELD: The SC ruled in favor of UPC and Uy in a way for it ordered the return of the seized items but
sustained the validity of the warrant. The SC ruled that the search warrant issued has not met some basic
requisites of validity. A search warrant must conform strictly to the requirements of the foregoing
constitutional and statutory provisions. These requirements, in outline form, are:
(1) the warrant 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.

87

The SC noted that there has been inconsistencies in the description of the place to be searched as
indicated in the said warrants. Also the thing to be seized was not clearly defined by the judge. He used
generic itineraries. The warrants were also inconsistent as to who should be searched. One warrant was
directed only against Uy and the other was against Uy and UPC. The SC however noted that the
inconsistencies wered cured by the issuance of the latter warrant as it has revoked the two others.
Section 2, Article III of the Constitution guarantees the right of the people against unreasonable searches
and seizures:
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.

[ G.R. No. 122092, May 19, 1999 ]

PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES, EVARISTO M. NARVAEZ JR.,

RICARDO G. SANTIAGO, ROBERTO A. DORMENDO, REYDANDE D. AZUCENA, NICEFORO V.
AVILA, FLORENTINO M. MULA, FELIX O. BAITO, HAROLD B. CELESTIAL, ELMEDENCIO C.
CALIXTRO, CARLITO S. LEGACION, ALBINO T. LUBANG, JEREMIAS I. ABAD AND HERMINIO V.
VILLAMIL, PETITIONERS, VS. JUDGE MAXIMIANO C. ASUNCION, PRESIDING JUDGE, BRANCH
104, REGIONAL TRIAL COURT OF QUEZON CITY; STATE PROSECUTOR LEO B. DACERA III; AND
THE SPECIAL OPERATIONS UNIT OF THE PNP TRAFFIC MANAGEMENT COMMAND,
RESPONDENTS.

DECISION
PANGANIBAN, J.:

To preserve and to uphold the constitutional right against unreasonable searches and seizures,
the requisites for the issuance of a search warrant must be followed strictly. Where the judge fails
to personally examine the applicant for a search warrant and the latter's witnesses, or where the
witnesses testify on matters not of their own personal knowledge, the search warrant must be
struck down.

88
The Case

Before us is a Petition for Certiorari and Prohibition[1] praying for (1) the nullification of Search
Warrant No. 799 (95) and the Orders dated March 23, 1993 and August 3, 1995, issued by the
Regional Trial Court (RTC), Branch 104, of Quezon City;[2] and (2) the issuance of a temporary
restraining order (TRO) or an injunction against State Prosecutor Leo B. Dacera III, ordering him
to desist from proceeding with IS No. 95-167.

In its October 23, 1995 Resolution,[3] this Court issued the TRO prayed for and required the
respondents to comment on the said Petition. On December 20, 1995, Respondent PNP Traffic
Management Command filed its 31-page Opposition[4] to the Petition, together with 90 pages of
annexes.[5] On February 22, 1996, the Office of the Solicitor General filed its Comment[6] agreeing
with petitioners that the writs prayed for must be granted. After petitioners filed a Reply to the
Opposition, the Court gave due course to the Petition and required the parties to submit their
respective memoranda.

In view of the contrary opinion of the Office of the Solicitor General, the Court, in its February 5,
1997 Resolution,[7] required State Prosecutor Leo B. Dacera to prepare the memorandum for the
public respondents. After issuing a show-cause order to Dacera on June 23, 1997,[8] the Court in
its September 24, 1997 Resolution gave him a non-extendible period ending on October 31, 1997
within which to file the required memorandum. In view of Dacera's manifestation that he was only
a nominal party and that he had yet to receive the records of the case from the PNP, the Court, in
its December 8, 1999 Resolution, ordered the Special Operations Unit (SOU) of the PNP Traffic
Management Command to file its memorandum within thirty days from notice; "otherwise, the
petition will be deemed submitted for decision."[9] Even after the expiration of the said period, the
required pleading was not yet received by this Court.

Hence, this Court considered Respondent SOU's refusal/failure to submit its memorandum as a
waiver of its privilege to do so.

The Facts

On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for a search warrant
before the said RTC of Quezon City, stating:[10]
"1. That the management of Paper Industries Corporation of the Philippines, located at PICOP
compound, Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice President Ricardo
G[.] Santiago, is in possession or ha[s] in [its] control high powered firearms, ammunitions,
explosives, which are the subject of the offense, or used or intended to be used in committing the
offense, and which xxx are [being kept] and conceal[ed] in the premises herein described.

89

"2. That a Search Warrant should be issued to enable any agent of the law to take possession and
bring to this Honorable Court the following described properties:

'Seventy (70) M16 Armalite rifles cal. 5.56, ten (10) M16 US rifles, two (2) AK-47 rifle[s], two (2) UZI
submachinegun[s], two (2) M203 Grenade Launcher[s] cal.40mm, ten (10) cal.45 pistol[s], ten (10)
cal.38 revolver[s], two (2) ammunition reloading machine[s], assorted ammunitions for said
calibers of firearms and ten (10) handgrenades.'
Attached to the application[11] were the joint Deposition of SPO3 Cicero S. Bacolod and SPO2
Cecilio T. Morito,[12] as well as a summary of the information and the supplementary statements
of Mario Enad and Felipe Moreno.

After propounding several questions to Bacolod, Judge Maximiano C. Asuncion issued the
contested search warrant,[13] the pertinent portion of which reads:
"It appearing to the satisfaction of the undersigned, after examining under oath, SPO3 Cicero S.
Bacolod, that there is probable cause to believe that the management of Paper Industries
Corporation of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig, Surigao del
Sur, represented by its Sr. Vice President Ricardo G. Santiago, has in its possession or control
the following:

Seventy (70) M16 Armalite rifles cal. 5.56

Ten (10) M14 US rifles
Two (2) AK-47 rifle[s]
Two (2) UZI submachinegun[s]
Two (2) M203 Grenade Launcher[s] cal. 40mm.
Ten (10) cal 45 pistol[s]
Ten (10) cal 38 revolver[s]
Two (2) ammunition reloading machine[s]
Assorted ammunitions for said calibers of firearms
Ten (10) handgrenades

90
in violation of the Provisions of PD 1866 (Illegal Possession of Firearms, Ammunition and
Explosives), and the same should be seized and brought before this Court.

"NOW, THEREFORE, you are hereby authorized to make an immediate search daytime between
8:00 a.m. [and] 4:00 p.m. of the aforementioned premises and to seize and bring the articles
above-described and make an immediate return there[of]"[14]
On February 4, 1995, the police enforced the search warrant at the PICOP compound and seized
the following:[15]
MAKE/TYPE
CALIBER
SERIAL NUMBER
BRAND

01
M16 Rifle
5.56
RP 175636
Elisco
02
M16 Rifle
5.56
RP 175636 (Tampered)
Elisco
03
M16 Rifle
5.56
RP 171702
Elisco

91
04
M16 Rifle
5.56
Defaced
Elisco
05
M16 Rifle
5.56
RP174253 (Tampered)
Elisco
06
M16 Rifle
5.56
RP173627 (Tampered)
Elisco
07
M16 Rifle
5.56
RP171337
Elisco
08
M16 Rifle
5.56
RP171114
Elisco

92
09
M16 Rifle
5.56
RP171114 (Tampered)
Elisco
10
M16 Rifle
5.56
RP171167 (Tampered)
Elisco
11
M16 Rifle
5.56
170881 (Tampered)
Elisco
12
M16 Rifle
5.56
RP170897
Elisco
13
M16 Rifle
5.56
RP171509
Elisco

93
(With pending case-Casaway Case)
14
M16 Rifle
5.56
RP 171754
Elisco
15
M16 Rifle
5.56
RP170881 (Tampered)
Elisco
16
M16 Rifle
5.56
RP174637
Elisco
17
M16 Rifle
5.56
RP171366
Elisco
18
M16 Rifle
5.56
RP174637 (Tampered)

94
Elisco
19
M16 Rifle
5.56
RP174610
Elisco
20
M16 Rifle
5.56
RP171367 (Tampered)
Elisco
01
M14Rifle
7.62
1499694
Elisco
02
M14Rifle
7.62
889163
Elisco
01
BAR
Cal. 30
865975

95
Royal
01
Carbine M1
Cal. 30
384181
US Carbin
02
Carbine M1
Cal. 30
998201
US Carbin
01
Garand M1
Cal. 30
1194008
Springfield
02
Garand M1
Cal. 30
3123784
Springfield

01
Shotgun
12 Gauge

96
H359704
Omega
02
Shotgun
12 Gauge
9211
Homemade
(Paltik)
MAGAZINE ASSEMBLY
QTY.

01 M16 (long)
29 pcs.

02 M16 (short)
48 pcs.

03 Carbine M1
171 pcs.

04 BAR
19 pcs.

97
LIVE AMMUNITION
QTY.

01 M16 2,023
rounds

03 Carbine M1
276 rounds

04 M-60 Cal. 7.62

1,800 rounds

05 M1 Garand
1,278 rounds

06 Rifle Grenade
11 rounds

07 Hand Grenade
4 pcs.

98
AMMO DAM POST NO. 24

MAKE/TYPE
CALIBER
SERIAL NUMBER
BRAND

01.
M16 Rifle
5.56
171425 (Tampered)
Gyno Corp.
02.
Machine Pistol
22
651 (Tampered)
Landmann

MAGAZINE ASSEMBLY
QTY.

01. M16 (short)

3 pcs.

99

02. M16 (long)

1 pc.

03. M14
8 pcs.

04. Clip M1 Garand

3 pcs.

05. Mag Assy. Cal .22

1 pc.

LIVE AMMUNITION

QTY.

01. M16
73 rounds

02. M14
160 rounds

100
03. M1 Garand Cal .30
30 rounds

04. Rifle Grenade

1 round

MANAGEMENT INTEL/INVEST UNIT

MAKE/TYPE
CALIBER
SERIAL NUMBER
BRAND

01.
M16 Rifle
5.56
RP 171725
Elisco
02.
M16 Rifle
5.56
RP 170799 (Tampered)
Elisco

101
03.
M16 Rifle
5.56
RP 132320
Elisco
04.
Machine
9 MM
54887
Intratec
Pistol

05.
Three (3)
12 Gauge
Surit-Surit (H)
Shotguns

MAGAZINE ASSEMBLY
QTY.

01. M16 (long)

3 pcs.

102
02. M16 (short)
4 pcs.

03. Intratec
1 pc.

04. US Carbine (defective)

2 pcs.

LIVE AMMUNITION
QTY.

01. M16
147 rds.

02. Cal. 30
5 rounds

03. 12 gauge Shotgun

7 rounds

04. Carbine
5 rounds

103

05. Rifle grenade (AVA-0051-84/0056-84)

2 rounds

06. 9MM
30 rounds

NEW ARMORY POST NO. 16

MAKE/TYPE
CALIBER
SERIAL NUMBER
BRAND

01.
Shotgun
12 Gauge
A359910

104
Armscor
02.
Shotgun
12 Gauge
A359716
Armscor
03.
Shotgun
12 Gauge
A359706
Armscor
04.
Shotgun
12 Gauge
A359707
Armscor
05.
Shotgun
12 Gauge
1036847
Armscor
06.
Shotgun
12 Gauge
A359702

105
Armscor
07.
Shotgun
12 Gauge
A359732
Armscor
08.
Shotgun
12 Gauge
A359728
Armscor
09.
Shotgun
12 Gauge
A359708
Armscor
10.
Shotgun
12 Gauge
A359711
Armscor

11.
Shotgun
12 Gauge

106
A359723
Armscor
12.
Shotgun
12 Gauge
A359713
Armscor
13.
Shotgun
12 Gauge
1031271
Armscor
14.
Shotgun
12 Gauge
A262338
SB
15.
Shotgun
12 Gauge
A261619
SB
16.
Shotgun
12 Gauge

107
Defaced
Not Indicated

LIVE AMMUNITION
QTY.

01. 12 GAUGE shotgun

306 rds.

02. M16
2,349 rds.

MAGAZINE ASSEMBLY
QTY.

01. Carbine (defective)

76 pcs.

02. Cal. 22 -do16 pcs.

03. M16 (long-defective)

108
2 pcs.

04. M16 (short-defective)

2 pcs.

05. Thompson (defective)

8 pcs.

06. Shotgun 12 Gauge (defective)

17 pcs.

07. BAR (defective)

2 pcs.

Believing that the warrant was invalid and the search unreasonable, the petitioners filed a "Motion
to Quash"[16] before the trial court. Subsequently, they also filed a "Supplemental Pleading to the
Motion to Quash" and a "Motion to Suppress Evidence."[17]

On March 23, 1995, the RTC issued the first contested Order which denied petitioners'
motions.[18] On August 3, 1995, the trial court rendered its second contested Order[19] denying
petitioners' Motion for Reconsideration.[20]

Hence, this recourse to this Court on pure questions of law.

Issues

In their Memorandum, petitioners submit the following grounds in support of their cause:[21]

109

"I
Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or
has exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95). Probable cause
[has] not xxx been sufficiently established and partaking as it does of the nature of a general
warrant.

"II

Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or
has exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95) on the ground that
it was unlawfully served or implemented.

"III

Petitioners respectfully submit that State Prosecutor Dacera is acting with grave abuse of
discretion or exceeding his jurisdiction in continuing with the proceedings in IS No. 95-167 on the
basis of illegally seized evidence."
In the main, petitioners question the validity of the search warrant. As a preliminary matter, we
shall also discuss respondents' argument that the Petition should be dismissed for raising factual
questions.

This Court's Ruling

The petition is meritorious.

Preliminary Issue:
Alleged Factual Questions

In their Opposition, respondents argue that the Petition should be dismissed for raising questions
of fact, which are not proper in a petition for certiorari under Rule 65. They maintain that the

110
Petition merely assails the "factual basis for the issuance of the warrant and the regularity of its
implementation."[22]

This argument is not convincing. It is settled that "there is a question of fact when the doubt
arises as to the truth or the falsity of alleged facts."[23] In the present case, petitioners do not
question the truth of the facts as found by the judge; rather, they are assailing the way in which
those findings were arrived at, a procedure which they contend was violative of the Constitution
and the Rules of Court. We agree that the Petition raises only questions of law, which may be
resolved in the present case.

Main Issue:
Validity of the Search Warrant

The fundamental right against unreasonable searches and seizures and the basic conditions for
the issuance of a search warrant are laid down in Section 2, Article III of the 1987 Constitution,
which reads:
"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." (Emphasis supplied)
Consistent with the foregoing constitutional provision, Sections 3 and 4, Rule 126 of the Rules of
Court,[24] detail the requisites for the issuance of a valid search warrant as follows:
"SEC. 3. Requisite for issuing search warrant. -- A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the things to be seized."

"SEC. 4. Examination of complainant; record. -- The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts personally known to them and attach to
the record their sworn statements together with any affidavits submitted."
More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2)
such presence is determined personally by the judge; (3) the complainant and the witnesses he or
she may produce are personally examined by the judge, in writing and under oath or affirmation;
(4) the applicant and the witnesses testify on facts personally known to them; and (5) the warrant
specifically describes the place to be searched and the things to be seized.[25] In the present
case, the search warrant is invalid because (1) the trial court failed to examine personally the
complainant and the other deponents; (2) SPO3 Cicero Bacolod, who appeared during the hearing

111
for the issuance of the search warrant, had no personal knowledge that petitioners were not
licensed to possess the subject firearms; and (3) the place to be searched was not described with
particularity.

No Personal Examination of the Witnesses

In his Order dated March 23, 1995, the trial judge insisted that the search warrant was valid,
stating that "before issuing the subject warrant, the court propounded searching questions to the
applicant and the witnesses in order to determine whether there was probable cause x x x."[26]
(Emphasis supplied.) This was supported by the Opposition to the Motion to Quash, which argued
that "it is erroneous for PICOP to allege that the Honorable Court did not propound searching
questions upon applicant P/Chief Inspector Napoleon Pascua and the witnesses he
produced."[27] The records, however, proclaim otherwise.

As earlier stated, Chief Inspector Pascua's application for a search warrant was supported by (1)
the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Morito, (2) a summary of
information and (3) supplementary statements of Mario Enad and Felipe Moreno. Except for
Pascua and Bacolod, however, none of the aforementioned witnesses and policemen appeared
before the trial court. Moreover, the applicant's participation in the hearing for the issuance of the
search warrant consisted only of introducing Witness Bacolod:[28]
"COURT:
Where is the witness for this application for search warrant?

P/Chief Insp. NAPOLEON PASCUA:

SPO3 CICERO S. BACOLOD, Your Honor.

COURT:
Swear the witness.

STENOGRAPHER: (To the witness)

Please raise your right hand, sir. Do you swear to tell the truth, the whole truth and
nothing but the truth before this Court?

112
WITNESS:
Yes Ma'am.

STENOGRAPHER:
Please state your name, age, civil status, occupation, address and other personal
circumstances.

WITNESS:
SPO3 Cicero S. Bacolod, 42 years old, married, policeman, c/o Camp Crame, Quezon City,
SOU, TMC.

x x x x x x x x x"
Chief Inspector Pascua was asked nothing else, and he said nothing more. In fact, he failed even
to affirm his application. Contrary to his statement, the trial judge failed to propound questions,
let alone probing questions, to the applicant and to his witnesses other than Bacolod (whose
testimony, as will later be shown, is also improper). Obviously, His Honor relied mainly on their
affidavits. This Court has frowned on this practice in this language:
"Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining
Judge has to take depositions in writing of the complainant and the witnesses he may produce
and attach them to the record. Such written deposition is necessary in order that the Judge may
be able to properly determine the existence or non-existence of the probable cause, to hold liable
for perjury the person giving it if it will be found later that his declarations are false.

xxxxxxxxx

"It is axiomatic that the examination must be probing and exhaustive, not merely routinary or proforma, if the claimed probable cause is to be established. The examining magistrate must not
simply rehash the contents of the affidavit but must make his own inquiry on the intent and
justification of the application."[29]
Bacolod's Testimony Pertained Not to
Facts Personally Known to Him

113
Bacolod appeared during the hearing and was extensively examined by the judge. But his
testimony showed that he did not have personal knowledge that the petitioners, in violation of PD
1866, were not licensed to possess firearms, ammunitions or explosives. In his Deposition, he
stated:
"Q

How do you know that said properties were subject of the offense?

A
Sir, as a result of our intensified surveillance and case build up for several days, we gathered
informations from reliable sources that subject properties [which] are in their possession and
control [are] the herein described properties subject of the offense. (Summary of Information dtd
Oct `94, SS's of Mario Enad and Felipe Moreno both dtd 30 Nov `94 are hereto attached)."[30]
When questioned by the judge, Bacolod stated merely that he believed that the PICOP security
guards had no license to possess the subject firearms. This, however, does not meet the
requirement that a witness must testify on his personal knowledge, not belief. He declared:
"Q
This is an application for Search Warrant against Paper Industries Corporation located at PICOP
Compound, Barangay Tabon, Bislig, Surigao del Sur. How come that you have knowledge that
there are illegal firearms in that place?
A
At Camp Crame, Quezon City, I was dispatched by our Commander to investigate the alleged
assassination plot of Congressman Amante.

Q
In the course of your investigation, what happened?
A
We found out that some of the suspects in the alleged assassination plot are employees of PICOP.

Q
Know[ing] that the suspects are employees of PICOP, what did you do?
A
We conducted the surveillance in that area inside the compound of PICOP in Tabon.

114
What did you find xxx?
A
I found xxx several high-powered firearms.

Q
How were you able to investigate the compound of PICOP?
A
I exerted effort to enter the said compound.

Q
By what means?
A
By pretending to have some official business with the company.

Q
So, in that aspect, you were able to investigate the compound of PICOP?
A
Yes, sir.

Q
What did you f[i]nd xxxt?
A
I found xxx several high-powered firearms being kept in the compound of PICOP.

115
Where are those located?
A
Sir, there are firearms kept inside the ammo dam.

Q
Inside the compound?
A
Located inside the compound.

Q
Then what?
A
Others, sir, were kept in the security headquarters or office.

Q
You mean to say that this Paper Industries Corporation has its own security guards?
A
Yes, they call it Blue Guards.

Q
You mean to say that their own security guards guarded the PICOP?
A
Yes, sir.

116
So, it is possible that the firearms used by the security guards are illegally obtained?
A
I believe they have no license to possess high-powered firearms. As far as the verification at FEU,
Camp Crame, [is concerned,] they have no license. (Emphasis supplied.)

Q
Have you investigated the Blue Guards Security Agency?
A
I conducted the inquiry.

Q
What did you find out?
A
They are using firearms owned by PICOP.

Q
Using firearms owned by PICOP?
A
Yes, sir.

Q
You mean to say that this Blue Guard Security Agency has no firearms of their own?
A
No high-powered firearms.

117
By the way, Mr. Witness, what kind of firearms have you seen inside the compound of PICOP?
A
There are M-16 armalite rifles.

Q
What else?

A
AK-47, armalites, M-203 Grenade Launcher, M-14 US rifles, .38 caliber revolvers, .45 caliber
pistols, several handgrenades and ammos."[31] (Emphasis supplied)
Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was
licensed. Bacolod merely declared that the security agency and its guards were not licensed. He
also said that some of the firearms were owned by PICOP. Yet, he made no statement before the
trial court that PICOP, aside from the security agency, had no license to possess those firearms.
Worse, the applicant and his witnesses inexplicably failed to attach to the application a copy of
the aforementioned "no license" certification from the Firearms and Explosives Office (FEO) of the
PNP, or to present it during the hearing. Such certification could have been easily obtained,
considering that the FEO was located in Camp Crame where the unit of Bacolod was also based.
In People v. Judge Estrada,[32] the Court held:
"The facts and circumstances that would show probable cause must be the best evidence that
could be obtained under the circumstances. The introduction of such evidence is necessary in
cases where the issue is the existence of the negative ingredient of the offense charged - for
instance, the absence of a license required by law, as in the present case - and such evidence is
within the knowledge and control of the applicant who could easily produce the same. But if the
best evidence could not be secured at the time of the application, the applicant must show a
justifiable reason therefor during the examination by the judge."
Particularity of the
Place to Be Searched

In view of the manifest objective of the constitutional safeguard against unreasonable search, the
Constitution and the Rules limit the place to be searched only to those described in the
warrant.[33] Thus, this Court has held that "this constitutional right [i]s the embodiment of a
spiritual concept: the belief that to value the privacy of home and person and to afford its
constitutional protection against the long reach of government is no less than to value human
dignity, and that his privacy must not be disturbed except in case of overriding social need, and
then only under stringent procedural safeguards."[34] Additionally, the requisite of particularity is
related to the probable cause requirement in that, at least under some circumstances, the lack of a
more specific description will make it apparent that there has not been a sufficient showing to the
magistrate that the described items are to be found in a particular place.[35]

118

In the present case, the assailed search warrant failed to describe the place with particularity. It
simply authorizes a search of "the aforementioned premises," but it did not specify such
premises. The warrant identifies only one place, and that is the "Paper Industries Corporation of
the Philippines, located at PICOP Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The
PICOP compound, however, is made up of "200 offices/buildings, 15 plants, 84 staff houses, 1
airstrip, 3 piers/wharves, 23 warehouses, 6 POL depots/quick service outlets and some 800
miscellaneous structures, all of which are spread out over some one hundred fifty-five
hectares."[36] Obviously, the warrant gives the police officers unbridled and thus illegal authority
to search all the structures found inside the PICOP compound.[37]

In their Opposition, the police state that they complied with the constitutional requirement,
because they submitted sketches of the premises to be searched when they applied for the
warrant. They add that not one of the PICOP Compound housing units was searched, because
they were not among those identified during the hearing.[38]

These arguments are not convincing. The sketches allegedly submitted by the police were not
made integral parts of the search warrant issued by Judge Asuncion. Moreover, the fact that the
raiding police team knew which of the buildings or structures in the PICOP Compound housed
firearms and ammunitions did not justify the lack of particulars of the place to be searched.[39]
Otherwise, confusion would arise regarding the subject of the warrant - the place indicated in the
warrant or the place identified by the police. Such conflict invites uncalled for mischief or abuse
of discretion on the part of law enforcers.

Thus, in People v. Court of Appeals,[40] this Court ruled that the police had no authority to search
the apartment behind the store, which was the place indicated in the warrant, even if they really
intended it to be the subject of their application. Indeed, the place to be searched cannot be
changed, enlarged or amplified by the police, viz.:
"x x x. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside
the instrument, arising from the absence of a meeting of the minds as to the place to be searched
between the applicants for the warrant and the Judge issuing the same; and what was done was
to substitute for the place that the Judge had written down in the warrant, the premises that the
executing officers had in their mind. This should not have been done. It [was] neither fair nor licit
to allow police officers to search a place different from that stated in the warrant on the claim that
the place actually searched - although not that specified in the warrant - [was] exactly what they
had in view when they applied for the warrant and had demarcated in their supporting evidence.
What is material in determining the validity of a search is the place stated in the warrant itself, not
what the applicants had in their thoughts, or had represented in the proofs they submitted to the
court issuing the warrant. Indeed, following the officers' theory, in the context of the facts of this
case, all four (4) apartment units at the rear of Abigail's Variety Store would have been fair game
for a search.

"The place to be searched, as set out in the warrant, cannot be amplified or modified by the
officers' own personal knowledge of the premises, or the evidence they adduced in support of

119
their application for the warrant. Such a change is proscribed by the Constitution which requires
inter alia the search warrant to particularly describe the place to be searched as well as the
persons or things to be seized. It would concede to police officers the power of choosing the
place to be searched, even if it not be that delineated in the warrant. It would open wide the door
to abuse of the search process, and grant to officers executing a search warrant that discretion
which the Constitution has precisely removed from them. The particularization of the description
of the place to be searched may properly be done only by the Judge, and only in the warrant itself;
it cannot be left to the discretion of the police officers conducting the search." (Emphasis
supplied.)
Seized Firearms and Explosives
Inadmissible in Evidence

As a result of the seizure of the firearms, effected pursuant to Search Warrant No. 799 (95) issued
by the respondent judge, the PNP filed with the Department of Justice a complaint docketed as IS
No. 95-167 against herein petitioners for illegal possession of firearms. State Prosecutor Dacera,
to whom the Complaint was assigned for preliminary investigation, issued a subpoena requiring
petitioners to file their counter-affidavits.

Instead of complying with the subpoena, petitioners asked for the suspension of the preliminary
investigation, pending the resolution of their motion to quash the search warrant. They argued, as
they do now, that the illegally obtained firearms could not be the basis of the criminal Complaint.
Their motion was denied. A subsequent Motion for Reconsideration met the same fate. In the
present Petition for Certiorari and Prohibition, petitioners assert that "State Prosecutor Dacera
cannot have any tenable basis for continuing with the proceedings in IS No. 95-167."[41]

Because the search warrant was procured in violation of the Constitution and the Rules of Court,
all the firearms, explosives and other materials seized were "inadmissible for any purpose in any
proceeding."[42] As the Court noted in an earlier case, the exclusion of unlawfully seized
evidence was "the only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures."[43] Verily, they are the "fruits of the poisonous tree."
Without this exclusionary rule, the constitutional right "would be so ephemeral and so neatly
severed from its conceptual nexus with the freedom from all brutish means of coercing evidence
xxx."[44]

In the present case, the complaint for illegal possession of firearms is based on the firearms and
other materials seized pursuant to Search Warrant No. 799 (95). Since these illegally obtained
pieces of evidence are inadmissible, the Complaint and the proceedings before State Prosecutor
Dacera have no more leg to stand on.

This Court sympathizes with the police effort to stamp out criminality and to maintain peace and
order in the country; however, it reminds the law enforcement authorities that they must do so

120
only upon strict observance of the constitutional and statutory rights of our people. Indeed, "there
is a right way to do the right thing at the right time for the right reason."[45]

WHEREFORE, the instant petition for certiorari and prohibition is hereby GRANTED and Search
Warrant No. 799 (95) accordingly declared NULL and VOID. The temporary restraining order
issued by this Court on October 23, 1995 is hereby MADE PERMANENT. No pronouncement as to
costs.

SO ORDERED.

Romero (Chairman), Vitug, and Gonzaga-Reyes, JJ., concur.

Purisima, J., did not participate in the deliberations.

PICOP v. Asuncion, 307 SCRA 253) (1999)

FACTS: On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for a search
warrant before the RTC of Quezon City, stating: 1. That the management of Paper Industries
Corporation of the Philippines, located at PICOP compound, is in possession or ha[s] in [its]
control high powered firearms, ammunitions, explosives, which are the subject of the offense, or
used or intended to be used in committing the offense, and which . . . are [being kept] and
conceal[ed] in the premises described; 2. That a Search Warrant should be issued to enable any
agent of the law to take possession and bring to the described properties. After propounding
several questions to Bacolod, Judge Maximiano C. Asuncion issued the contested search
warrant. On February 4, 1995, the police enforced the search warrant at the PICOP compound and
seized a number of firearms and explosives. Believing that the warrant was invalid and the search
unreasonable, the petitioners filed a Motion to Quash before the trial court. Subsequently, they
also filed a Supplemental Pleading to the Motion to Quash and a Motion to SuppressEvidence.
On March 23, 1995, the RTC issued the first contested Order which denied petitioners motions.
On August 3, 1995, the trial court rendered its second contested Order denying petitioners Motion
for Reconsideration.

ISSUE: WON the search warrant issued was valid

HELD:

The requisites of a valid search warrant are: (1) probable cause is present; (2) such presence is
determined personally by the judge; (3) the complainant and the witnesses he or she may produce

121
are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant
and the witnesses testify on facts personally known to them; and (5) the warrant specifically
describes the place to be searched and the things to be seized. In the present case, the search
warrant is invalid because (1) the trial court failed to examine personally the complainant and the
other deponents; (2) SPO3 Cicero Bacolod, who appeared during the hearing for the issuance of
the search warrant, had no personal knowledge that petitioners were not licensed to possess the
subject firearms; and (3) the place to be searched was not described with particularity.

[ G.R. No. 149878, July 01, 2003 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TIU WON CHUA A.K.A. "TIMOTHY TIU"
AND QUI YALING Y CHUA A.K.A. "SUN TEE SY Y CHUA," ACCUSED-APPELLANT.

DECISION
PUNO, J.:

This is an appeal from the decision of the Regional Trial Court (RTC) of Manila, Branch 27,
convicting appellants Tiu Won Chua a.k.a. Timothy Tiu (Tiu Won) and Qui Yaling y Chua a.k.a. Sun
Tee Sy y Chua (Qui Yaling) for violation of Section 16, Article III of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659.

Appellants were charged with the crime of illegal possession of a regulated drug, i.e.,
methamphetamine hydrochloride, otherwise known as "shabu," in an information which reads:
The undersigned accuses TIU WON CHUA aka "Timothy Tiu" and QUI YALING Y CHUA aka "Sun
Tee Sy Y Chua" of violation of Section 16, Article III in relation to Section 2 (e-2), Article I of
Republic Act No. 6425, as amended by Batas Pambansa Blg. 179 and as further amended by
Republic Act No. 7659, committed as follows:

That on or about the 3rd day of October 1998, in the City of Manila, Philippines, the said accused
without being authorized by law to possess or use any regulated drug, did then and there wilfully,
unlawfully, knowingly and jointly have in their possession and under their custody and control the
following, to wit:
A sealed plastic bag containing two three four point five (234.5) grams of white crystalline
substance;

122
Four (4) separate sealed plastic bags containing six point two two four three (6.2243) grams of
white crystalline substance;

Sixteen (16) separate sealed plastic bags containing twenty point three six seven three (20.3673)
grams of white crystalline substance; or a total of 261.0916 grams, and;

An improvised tooter with traces of crystalline substance

known as "SHABU" containing methamphetamine hydrochloride, a regulated drug, without the
corresponding license or prescription thereof.

Contrary to law.[1]
During arraignment, a plea of not guilty was entered. Appellants, with the assistance of counsel,
and the prosecution stipulated on the following facts:
The authenticity of the following documents:

The letter of Police Senior Inspector Angelo Martin of WPD, District Intelligence Division, United
Nations Avenue, Ermita, Manila, dated October 12, 1998, to the Director of the NBI requesting the
latter to conduct a laboratory examination of the specimen mentioned therein;

The Certification issued by Forensic Chemist Loreto Bravo of the NBI, dated October 13, 1998, to
the effect that the specimen mentioned and enumerated therein gave positive results for
methamphetamine hydrochloride, Exhibit "B"; and

Dangerous Drug Report No. 98-1200 issued by Forensic Chemist Bravo, dated October 13, 1998,
to the effect that the specimen mentioned therein gave positive results for methamphetamine
hydrochloride;

The existence of one plastic bag containing 234.5 grams of methamphetamine hydrochloride,
Exhibit "D"; four (4) plastic sachets also containing methamphetamine hydrochloride with a total
net weight of 6.2243 grams, Exhibits "E", "E-1", "E-2" and "E-3"; additional 16 plastic sachets
containing methamphetamine hydrochloride with a total net weight of 20.3673 grams, Exhibits "F",
"F-1" to "F-15", and one improvised tooter with a length of 8 inches more or less and with a red
plastic band, Exhibit "G";

123
Forensic Chemist Loreto Bravo has no personal knowledge as to the source of the regulated drug
in question; and

Tiu Won Chua and Qui Yaling y Chua as stated in the information are the true and correct names
of the two accused.[2]
The witnesses presented by the prosecution were SPO1 Anthony de Leon, PO2 Artemio Santillan
and PO3 Albert Amurao. Their testimonies show that the police authorities, acting on an
information that drug-related activities were going on at the HCL Building, 1025 Masangkay St.,
Binondo, Manila, surveyed the place on October 2, 3, 4 and 5, 1998. At about 10 p.m. of October 6,
they conducted a test-buy operation, together with a Chinese-speaking asset. They were able to
buy P2,000.00 worth of substance from appellants, which, upon examination by the PNP crime
laboratory, proved positive for methamphetamine hydrochloride.[3] Nonetheless, they did not
immediately arrest the suspects but applied for a warrant to search Unit 4-B of HCL Building, 1025
Masangkay St., Binondo, Manila. Their application to search the unit supposedly owned by
"Timothy Tiu" was granted by Judge Ramon Makasiar of Branch 35 of the RTC of Manila on
October 9.[4] Armed with the warrant, they proceeded to the place and learned that Tiu Won was
not inside the building. They waited outside but Tiu Won did not come. After several stakeouts,
they were able to implement the warrant on October 12. Failing to get the cooperation of the
barangay officials, they requested the presence of the building coordinator, Noel Olarte, and his
wife, Joji, who acted as witnesses.

During the enforcement of the warrant, there were three (3) persons inside the apartment, namely,
appellants Tiu Won and Qui Yaling, and a housemaid. The search was conducted on the sala and
in the three (3) bedrooms of Unit 4-B. On top of a table inside the master's bedroom, one (1) big
pack, containing 234.5 grams of shabu, was found inside a black leather man's handbag
supposedly owned by Tiu Won, while sixteen (16) small packs of shabu weighing 20.3673 grams
were found inside a lady's handbag allegedly owned by Qui Yaling. Also contained in the
inventory were the following items: an improvised tooter, a weighing scale, an improvised burner
and one rolled tissue paper.[5] The authorities also searched a Honda Civic car bearing Plate No.
WCP 157, parked along Masangkay Street, registered in the name of the wife of Tiu Won and
found four (4) plastic bags containing 6.2243 grams of shabu, which were likewise confiscated. A
gun in the possession of Tiu Won was also seized and made subject of a separate criminal case.

The defense presented appellants Tiu Won and Qui Yaling. They denied that Timothy Tiu and Tiu
Won Chua are one and the same person. They presented papers and documents to prove that
appellant is Tiu Won Chua and not Timothy Tiu, as stated in the search warrant. Tiu Won also
claimed that he does not live in the apartment subject of the search warrant, alleging that he is
married to a certain Emily Tan and is a resident of No. 864 Alvarado St., Binondo, Manila.
Nonetheless, he admitted that his co-appellant, Qui Yaling, is his mistress with whom he has two
children. Qui Yaling admitted being the occupant of the apartment, but alleged that she only
occupied one room, while two other persons, a certain Lim and a certain Uy, occupied the other
rooms. Both appellants denied that they were engaged in the sale or possession of shabu. They
asserted that they are in the jewelry business and that at the time the search and arrest were
made, the third person, whom the prosecution identified as a housemaid, was actually a certain
Chin, who was there to look at some of the pieces of jewelry sold by Tiu Won. They also denied
that a gun was found in the possession of Tiu Won.

124

Qui Yaling recalled that upon asking who was it knocking at the door of her apartment on October
12, the police authorities represented that they were electric bill collectors. She let them in. She
was surprised when upon opening the door, around ten (10) policemen barged inside her unit.
She, together with Tiu Won and Chin, was asked to remain seated in the sofa while the men
searched each room. Tiu Won alleged that after a fruitless search, some of the policemen went
out, but came back a few minutes later with another person. Afterwards, he was made to sign a
piece of paper. Appellants also claimed that the policemen took their bags which contained
money, the pieces of jewelry they were selling and even Qui Yaling's cell phone. They both denied
that shabu was discovered in the apartment during the search. Appellants were arrested and
brought to the police station.

In a decision, dated August 15, 2001, the RTC found proof beyond reasonable doubt of the guilt of
the appellants and sentenced them to suffer the penalty of reclusion perpetua and a fine of
P500,000.00 each.[6]

Thus, appellants interpose this appeal raising the following assignment of errors:

I
THE TRIAL COURT ERRED IN DISREGARDING THE LEGAL DEFECTS OF THE SEARCH
WARRANT USED BY THE POLICE OPERATIVES AGAINST BOTH ACCUSED.

II

THE TRIAL COURT ERRED IN TAKING INTO CONSIDERATION EVIDENCES (sic) WHICH SHOULD
HAVE BEEN EXCLUDED AND DISREGARDED WHICH RESULTED IN THE ERRONEOUS
CONVICTION OF BOTH ACCUSED.

III

THE TRIAL COURT ERRED IN CONVICTING BOTH ACCUSED DESPITE THE ABSENCE OF PROOF
BEYOND REASONABLE DOUBT.

IV

125

THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THE CONSTITUTIONAL RIGHTS
OF BOTH ACCUSED WERE SERIOUSLY VIOLATED BY THE POLICE OPERATIVES.[7]
These issues can be trimmed down to two i.e., the legality of the search warrant and the search
and arrest conducted pursuant thereto, and the correctness of the judgment of conviction
imposed by the RTC.

As regards the propriety of the search warrant issued in the name of Timothy Tiu, which did not
include appellant Qui Yaling, appellants contend that because of this defect, the search
conducted and consequently, the arrest, are illegal. Being fruits of an illegal search, the evidence
presented cannot serve as basis for their conviction.

We beg to disagree. There are only four requisites for a valid warrant, i.e,: (1) it must be issued
upon "probable cause"; (2) probable cause must be determined personally by the judge; (3) such
judge must examine under oath or affirmation the complainant and the witnesses he may
produce; and (4) the warrant must particularly describe the place to be searched and the persons
or things to be seized.[8] As correctly argued by the Solicitor General, a mistake in the name of
the person to be searched does not invalidate the warrant,[9] especially since in this case, the
authorities had personal knowledge of the drug-related activities of the accused. In fact, a "John
Doe" warrant satisfies the requirements so long as it contains a descriptio personae such as will
enable the officer to identify the accused.[10] We have also held that a mistake in the identification
of the owner of the place does not invalidate the warrant provided the place to be searched is
properly described.[11]

Thus, even if the search warrant used by the police authorities did not contain the correct name of
Tiu Won or the name of Qui Yaling, that defect did not invalidate it because the place to be
searched was described properly. Besides, the authorities conducted surveillance and a test-buy
operation before obtaining the search warrant and subsequently implementing it. They can
therefore be presumed to have personal knowledge of the identity of the persons and the place to
be searched although they may not have specifically known the names of the accused. Armed
with the warrant, a valid search of Unit 4-B was conducted.

We affirm, however, the illegality of the search conducted on the car, on the ground that it was not
part of the description of the place to be searched mentioned in the warrant. It is mandatory that
for the search to be valid, it must be directed at the place particularly described in the warrant.[12]
Moreover, the search of the car was not incidental to a lawful arrest. To be valid, such warrantless
search must be limited to that point within the reach or control of the person arrested, or that
which may furnish him with the means of committing violence or of escaping.[13] In this case,
appellants were arrested inside the apartment, whereas the car was parked a few meters away
from the building.

126
In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) appellants
were in possession of an item or an object identified to be a prohibited or regulated drug, (2) such
possession is not authorized by law, and (3) the appellants were freely and consciously aware of
being in possession of the drug.[14] We also note that the crime under consideration is malum
prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal
liability. Mere possession of a regulated drug without legal authority is punishable under the
Dangerous Drugs Act.[15]

In the case at bar, the prosecution has sufficiently proved that the packs of shabu were found
inside Unit 4-B, HCL Building, 1025 Masangkay St., Binondo, Manila. Surveillance was previously
conducted. Though no arrest was made after the successful test-buy operation, this does not
destroy the fact that in a subsequent search, appellants were found in possession of shabu. The
testimonies of the prosecution witnesses are consistent in that after the test-buy operation, they
obtained a search warrant from Judge Makasiar, pursuant to which, they were able to confiscate,
among others, several packs of shabu from a man's handbag and a ladies' handbag inside a room
in the unit subject of the warrant. Furthermore, the seizure of the regulated drug from Unit 4-B is
proven by the "Receipt for Property Seized"[16] signed by SPO1 de Leon, the seizing officer, Noel,
the building administrator, and Joji Olarte, his wife, who were also present. De Leon attested to
the truth and genuineness of the receipt which was not contradicted by the defense.

Be that as it may, we cannot sustain the trial court's decision attributing to both appellants the
illegal possession of the same amount of shabu. We note that nowhere in the information is
conspiracy alleged. Neither had it been proven during the trial. As such, we need to look at the
individual amounts possessed by each appellant.

In his testimony, Tiu Won admitted ownership of the man's handbag where 234.5 grams of shabu
were found, viz:
Q:

During those ten to 20 minutes, what were those policemen doing inside that unit?

A:
They went inside the rooms and started ransacking the drawers and everything. As a matter of
fact, even handbags were searched by them.

Q:

Whose handbags were searched?

A:
My bag, the one I was carrying that day, with jewelry and checks and others were taken by
them.[17] (emphasis supplied)
Qui Yaling, in her appellant's brief, denied owning the handbag where 20.3673 grams of shabu
were discovered. However, during her testimony, she admitted its ownership, viz:

127
Q:
Now, the police testified before this court that you has (sic) a bag and when they searched this
bag, it yielded some sachets of shabu(.) (W)hat can you say about that?
A:
That is an absolute lie, sir. What they saw in my bag were my cosmetics.[18] (emphasis supplied)
An admission is an act or declaration of a party as to the existence of a relevant fact which may be
used in evidence against him.[19] These admissions, provided they are voluntary, can be used
against appellants because it is fair to presume that they correspond with the truth, and it is their
fault if they do not.[20]

Qui Yaling likewise argues that the lower court erred in attributing ownership of the handbag to
her considering that there was another girl present at the apartment during the search. She
contends that since the prosecution was not able to establish the ownership of the bag, then such
could have also been owned by Chin.

We do not subscribe to this argument. The defense failed to bring Chin to court, although during
the course of the presentation of their evidence, they manifested their intention to present her
testimony. Furthermore, a visitor does not normally leave her bag lying anywhere, much more in
the master's bedroom. Being the occupant of the apartment, it is more logical to presume that the
handbag belongs to Qui Yaling. The failure of the prosecution to present the bags and proofs that
the bags belong to the appellants is immaterial because the bags, the license of Tiu Won found
inside the man's handbag and the passport of Qui Yaling found inside the ladies' handbag are not
illegal. Having no relation to the use or possession of shabu, the authorities could not confiscate
them for they did not have the authority to do so since the warrant authorized them to seize only
articles in relation to the illegal possession of shabu.[21] Not within their control, they could not
have been presented in court.

We now come to the penalties of the appellants. R. A. No. 6425, as amended by R. A. No. 7659,
applies. Thus, since 234.5 grams of shabu were found inside the man's handbag, deemed to be
owned by Tiu Won, he is guilty of violating Section 16, Article III of R.A. No. 6425, while Qui Yaling,
whose handbag contained only 20.3673 grams of shabu is guilty of violating Section 20 thereof.
Section 16, in connection with Section 20 (1st paragraph), provides the penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos
where the amount of shabu involved is 200 grams or more. Where the amount is less than 200
grams, Section 20 punishes the offender with the penalty ranging from prision correccional to
reclusion perpetua.

IN VIEW WHEREOF, the decision of RTC Br. 27, Manila as to the penalty of appellant Tiu Won is
affirmed, while that of appellant Qui Yaling is modified. Tiu Won Chua is sentenced to a penalty of
reclusion perpetua, and a fine of five hundred thousand pesos (P500,000.00) in accordance with
Section 16 and Section 20 (1st paragraph) of R.A. No. 6425, as amended by R.A. No. 7659. Qui

128
Yaling y Chua is sentenced to an indeterminate sentence of prision correccional as minimum to
prision mayor as maximum, there being no mitigating or aggravating circumstances.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO
DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V.
SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN.
ALEXANDER AGUIRRE, respondents.
G.R. Nos. 84581-82 October 3, 1991
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.
G.R. Nos. 84583-84 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO
and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL. REX D.
PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP
Detention Center, Camp Crame, Quezon City, respondents.
G.R. No. 83162 October 3, 1991
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY
RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO,respondents.
G.R. No. 85727 October 3, 1991

129
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO:
ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro
Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT.
MALTRO AROJADO, respondents.
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
The Solicitor General for the respondents.
RESOLUTION

PER CURIAM:p
Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking
reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which
dismissed the petitions, with the following dispositive part:
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered
reduced from P60,000.00 to P10,000.00. No costs.
The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision
did not rule as many misunderstood it to do that mere suspicion that one is Communist Party or
New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision
merely applied long existing lawsto the factual situations obtaining in the several petitions. Among these
laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing
membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer
reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people
not the Court that should repeal, change or modify them.
In their separate motions for reconsideration, petitioners, in sum, maintain:
1. That the assailed decision, in upholding the validity of the questioned arrests made
without warrant, and in relying on the provisions of the Rules of Court, particularly Section
5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional
rights of the persons arrested;

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2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be
abandoned;
3. That the decision erred in considering the admissions made by the persons arrested
as to their membership in the Communist Party of the Philippines/New People's Army,
and their ownership of the unlicensed firearms, ammunitions and subversive documents
found in their possession at the time of arrest, inasmuch as those confessions do not
comply with the requirements on admissibility of extrajudicial admissions;
4. That the assailed decision is based on a misappreciation of facts;
5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.
We find no merit in the motions for reconsideration.
It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by
petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy
to relieve persons from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas
corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be
ordered forthwit released.
In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before
rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were
made in accordance with law. For, if the arrests were made in accordance with law, would follow that the
detention resulting from such arrests also in accordance with law.
There can be no dispute that, as a general rule, no peace officer or person has the power or authority to
arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law
expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states
the grounds upon which a valid arrest, without warrant, can be conducted.
In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule
113, which read:
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 he arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrest has committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without
warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was
committing an offense, when arrested because Dural was arrested for being a member of the New
People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like
rebellion is, under the doctrine ofGarcia vs. Enrile, 8 a continuing offense, thus:
The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses committed in the furtherance (sic) on the

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occasion thereof, or incident thereto, or in connection therewith under Presidential
Proclamation No. 2045, are all in the nature of continuing offenses which set them apart
from the common offenses, aside from their essentially involving a massive conspiracy of
nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which includes armed struggle for the
overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR
PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes
Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at
the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the
two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there
and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as
agents or representatives of organized government. It is in this sense that subversion like rebellion (or
insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e.
adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are
anchored on an ideological base which compels the repetition of the same acts of lawlessness and
violence until the overriding objective of overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his
membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts
that will be shown hereafter.
Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that
the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires
two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just
committed an offense, and second, that the arresting peace officer or private person has personal
knowledge of facts indicating that the person to be arrested is the one who committed the offense.
Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of
facts" acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without warrant must be based
upon probable cause, which means an actual belief or reasonable grounds of suspicion 9
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. 10 A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers making the arrest. 11
These requisites were complied with in the Umil case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes
Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their
office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot
wound; that the information further disclosed that the wounded man in the said hospital was among the
five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January
1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan
City; that based on the same information, the wounded man's name was listed by the hospital
management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes,
Bian, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA member
("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and
with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief

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that an NPA member was truly in the said hospital. The actual facts supported by circumstances
are: first the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in
Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second a wounded person listed in
the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a
gunshot wound; third as the records of this case disclosed later, "Ronnie Javellon" and his address
entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural.
In fine, the confidential information received by the arresting officers merited their immediate attention and
action and, in fact, it was found to be true. Even the petitioners in their motion for
reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural
was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital
management in compliance with the directives of the law, 14 and, therefore, came from reliable sources.
As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers
who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have
conducted the same in good faith, considering that law enforcers are presumed to regularly perform their
official duties. The records show that the arresting officers did not appear to have been ill-motivated in
arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance
with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.
Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an
information charging double murder with assault against agents of persons in authority was filed against
Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly
placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988,
he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is
now on appeal before this Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon
Casiple(G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also
justified. They were searched pursuant to search warrants issued by a court of law and were found wit
unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught
in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules
of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant,
informations were filed in court against said petitioners, thereby placing them within judicial custody and
disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this
Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the
authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:
1. On 27 June 1988, the military agents received information imparted by a former NPA
about the operations of the CPP and NPA in Metro Manila and that a certain house
occupied by one Renato Constantine, located in the Villaluz Compound, Molave St.,
Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view
of this information, the said house was placed under military surveillance and on 12
August 1988, pursuant to a search warrant duly issued by court, a search of the house
was conducted; that when Renato Constantine was then confronted he could not produce
any permit to possess the firearms, ammunitions, radio and other communications
equipment, and he admitted that he was a ranking member of the CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in
the evening of 12 August 1988, and admitted that he was an NPA courier and he had
with him letters to Renato Constantine and other members of the rebel group.

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3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of
Buenaobra who had in his possession papers leading to the whereabouts of
Roque; 17 that, at the time of her arrest, the military agents found subversive documents
and live ammunitions, and she admitted then that the documents belonged to her. 18
4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without
warrant on 13 August 1988, when they arrived at the said house of Renato Constantine
in the evening of said date; that when the agents frisked them, subversive documents,
and loaded guns were found in the latter's possession but failing to show a permit to
possess them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on
12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to
be the head of the CPP/NPA, and whose house was subject of a search warrant duly
issued by the court. At the time of her arrest without warrant the agents of the PCIntelligence and Investigation found ammunitions and subversive documents in the car of
Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason
which compelled the military agents to make the arrests without warrant was the information given to the
military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito
Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location
and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.
And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque,
Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information
they had received was true and the persons to be arrested were probably guilty of the commission of
certain crimes: first: search warrant was duly issued to effect the search of the Constantine
safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that
he was a ranking member of the CPP, and found in his possession were unlicensed firearms and
communications equipment; third: at the time of their arrests, in their possession were unlicensed
firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as
their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by
their former comrades in the organization as CPP/NPA members. In view of these circumstances, the
corresponding informations were filed in court against said arrested persons. The records also show that,
as in the case of Dural, the arrests without warrant made by the military agents in the Constantino
safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly
performed.
With all these facts and circumstances existing before, during and after the arrest of the afore-named
persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would
have been better for the military agents not to have acted at all and made any arrest. That would have
been an unpardonable neglect of official duty and a cause for disciplinary action against the peace
officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of
executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the
alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in
the nature of an administrative measure. The power to arrest without warrant is without limitation as long
as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public
interest in peace and order in our communities.
In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth
in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of

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committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the
reason that can validly compel the peace officers, in the performance of their duties and in the interest of
public order, to conduct an arrest without warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under the
conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons
are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not
strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary
detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions.
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the
attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the
corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of
drivers and sympathizers, where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)
and that the police authorities were present during the press conference held at the National Press Club
(NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on
23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing
offense," but for uttering the above-quoted language which, in the perception of the arresting officers,
was inciting to sedition.
Many persons may differ as to the validity of such perception and regard the language as falling within
free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the
pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the
charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest,
without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the
balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this
case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be
noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to
P10,000.00.
Let it also be noted that supervening events have made the Espiritu case moot and academic. For
Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not
appear. Because of this development, the defense asked the court a quo at the resumption of the
hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally
dismissed and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo
Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in
the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested
and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20
of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for
investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant
was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113,
since it was only on 28 December 1988 that the police authorities came to know that Nazareno was
probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without
warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible
flight.

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As shown in the decision under consideration, this Court, in upholding the arrest without warrant of
Nazareno noted several facts and events surrounding his arrest and detention, as follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information
charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo
Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock
eted therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was
denied by the trial court in an order dated 10 January 1989, even as the motion to post
bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial
court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of
Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus,
retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch
24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the
petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the
Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas
corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents
by reason of an information filed against him with the Regional Trial Court of Makati,
Metro Manila which liad taken cognizance of said case and had, in fact, denied the
motion for bail filed by said Narciso Nazareno (presumably because of the strength of the
evidence against him).
This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding
informations against them were filed in court. The arrests of Espiritu and Nazareno were based on
probable cause and supported by factual circumstances. They complied with conditions set forth in
Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for
murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of
Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).
Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of
an extrajudicial admission.
In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other
hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and
subversive documents found in her possession during her arrest, belonged to her.
The Court, it is true, took into account the admissions of the arrested persons of their membership in the
CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their
possession. But again, these admissions, as revealed by the records, strengthen the Court's perception
that truly the grounds upon which the arresting officers based their arrests without warrant, are supported
by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain
offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the
other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their
warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested
without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the
merits.

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As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this
Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing
conditions where national security and liability are still directly challenged perhaps with greater vigor from
the communist rebels. What is important is that everv arrest without warrant be tested as to its
legality via habeas corpus proceeding. This Court. will promptly look into and all other appropriate
courts are enjoined to do the same the legality of the arrest without warrant so that if the conditions
under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee
shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to
languish in his detention but must be promptly tried to the end that he may be either acquitted or
convicted, with the least delay, as warranted by the evidence.
A Final Word
This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or
a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated
the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated
suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long
existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and,
further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests.
More than the allure of popularity or palatability to some groups, what is important is that the Court be
right.
ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This
denial is FINAL.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur.

Separate Opinions
FERNAN, C.J., concurring and dissenting:
After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive evaluation of
the motions for reconsideration of the said decision, I am inclined to agree with the, majority's resolution
on said motions for reconsideration except for the legality of the warrantless arrests of petitioner
Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of
murder.
In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any 'continuing
offense,' but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na."
Apparently, such statement was, in the perception of the arresting officers, inciting to sedition. While not
conceding the validity of such perception, realizing that it is indeed possible that Espiritu was merely
exercising his right to free speech, the resolution nonetheless supports the authority of peace officers
"only for purposes of the arrest."
I find this position to be adverse to the very essence of the resolution which sanctions warrantless arrests
provided they are made in accordance with law. In the first place, Espiritu mav not be considered as
having "just committed" the crime charged. He allegedly first uttered seditious remarks at the National
Press Club in the afternoon of November 12, 1988. The second allegedly seditious remark aforequoted
was made at around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these

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circumstances, the law enforcement agents had time, short though it might seem, to secure a warrant for
his arrest. Espiritu's apprehension may not therefore be considered as covered by Section 5(b) of Rule
113 which allows warrantless arrests "when an offense has in fact just been committed."
The same observation applies with greater force in the case of Nazareno who was arrested 14 days after
the commission of the crime imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular
provision of law had beeri violated by the person arrested. True it is that law en.orcement agents and
even prosecutors are not all adept at the However, errneous perception, not to mention ineptitude among
their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That
the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p. 18)
that he was exercising a right which the arresting officer considered as contrary to law, is beside the
point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly
perceived his action.
Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a
warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any of
the acts enumerated in Article 142 of the Revised Penal Code may suffice to hold anyone liable for
inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a question of
policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts
in Article 142 may infringe upon the fundamental freedoms of speech and expression. There arises,
therefore, the necessity of balancing interests; those of the State as against those of its individual citizen.
Here lies the urgency of judicial intervention before an arrest is made. Added to this is the subjectivity of
the determination of what may incite other people to sedition. Hence, while the police should act swiftly
when a seditious statement has been uttered in view of the jeopardy it may cause the government,
speedy action should consist not in warrantless arrests but in securing warrants for such arrests.
On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be underscored
that anyone who undertakes such arrest must see to it that the alleged violator is knowing member of a
subversive organization as distinguished from a nominal one (People vs. Ferrer, L-32613-14, December
27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if has not committed overt act of
overthrowing the government such as bombing of government offices trie assassination of government
officials provided there is probable cause to believe that he is in the roll of members of a subversive
organization. It devolves upon the accused to prove membership by force or ciorcion. Certainly, one may
not be in such a roll without undergoing the concious act of enlistment.
It bears repeating theat warrantless arrests are governed by law and subject to stringent application.
Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense "has in
fact just been committed. "connotes immediacy in point of time and excludes cases under the old rule
where an offense 'has in fact been committed' no how long ago. Similarly, the arrestor must have
'personal knowledge of the facts indicating that the [arrestee] has committed it' (instead of just
'reasonable ground believe that the [arrestee] has committed it' under the old rule)." (Dissenting opinion
in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).
I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without warrants.
In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court considered as illegal
the warrantless arrest of a subversive not based on the arresting officer's personal knowledge such
subversion and held that any rule on arrests witho warrants must be strictly construed. We categorically
state therein that warrantless arrests should "clearly fall within the situations when securing a warrant be
absurd or is manifestly unnecessary was provided by the Rules" (144 SCRA at 14). Moreover. "it is not
enough that there is reasonable ground to believe that the person to be arrested has committed a crime.
A crime must in fact or actually (has just) been committed first. That crime has actually been committed is
an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of

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the commission of the offense must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator. (Supra, at p. 15).
Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the
procedure to be observed the moment a person is arrested:
At the time a person is arrested, it shall be the duty of the arresting officer to imform him
of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall
be informed of his constitutional rights to remain silent and to counsel, and that any
statement he might make could be used against him. The person shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most expedient
means by telephone if possible or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the presence of counsel engaged by the
person arressted, by any person on his behalf, or appointed by the court upon petition on
his behalf, or appointed the court upon the petition either of the detainee himself or by
anyone on his behalf. The right to counsel may be waived but the waiver shall not be
valid unless made with the assistance of counsel. Any statement obtained in violation of
the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part
shall be inadmissible evidence. (121 SCRA at 554).
These judicial pronouncements must be observed by everyone concerned: the military and civilian
components of the government tasked with law enforcement as well as the ordinary citizen who faces a
situation wherein civic duty demands his intervention to preserve peace in the community.
I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a political
or ideological element. Such abuses are more often than not, triggered by the difficulty in finding evidence
that could stand judicial scrutiny to pinpoint a subversive, police officers usually have to make long
persistent surveillance. However, for the orderly administration of government and the maintenance of
peace and order in the country, good faith should be reposed on the officials implementing the law. After
all, we are not wanting in laws to hold any offending peace officer liable both administratively and
criminally for abuses in the performance of their duties. Victims of abuses should resort to legal remedies
to redress their grievances.
If existing laws are inadequate, the policy-determining branches of the government may be exhorted
peacefully by the citizenry to effect positive changes. This Court, mandated b the Constitution to uphold
the law, can only go as far as inter pruting existing laws and the spirit behind them. Otherwise, we hail be
entering the dangerous ground of judicial legislation.
GUTIERREZ, JR., J., concurring and dissenting:
The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is disturbing
whenever the Court leans in the direction of order instead of liberty in har cases coming before us.
People all over the world are fast accepting the theory that only as a society encourages freedom and
permits dissent can it have lasting security and real progress, the theory that enhancing order through
constraints on freedom is deceptive because restrictions on liberty corrode the very values Govenment
pretends to promote. I believe we should move with the people of the world who are fast liberating
themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant,
to wit:

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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;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it.
xxx xxx xxx
Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the
tendency should be to declare the warrantless arrest illegal.
Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque,
Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the
petitioners were arrested after having been apprehended while in possession of illegal firearms and
ammunitions. They were actually committing a crime when arrested. I concur in the denial of their motions
for reconsideration.
I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested
while urging jeepnev and bus drivers to join a strike of transport workers on the ground that that was
inciting to sedition.
This impresses me as Court validation of a clear infringement of an individual's freedom of speech.
"Inciting to sedition" is a term over which the most learned writers and jurists will differ when applied to
actual cases. I doubt if there are more than a handful of policemen in the whole country who would know
the full dimensions of the fine distinctions which separate the nation's interest in the liberty to fully anfd
freely discuss matters of national importance on one hand and the application of the clear and present
danger rule as the test when claims of national security and public safety are asserted, on the other. In
fact, the percentage of knowledgeability would go down further if we consider that "inciting to sedition"
requires the ability to define, among other (1) what kinds of speeches or writings fall lander the term
"inciting" (2) the meaning of rising publicly and tumultously; (3,) when does a certain effort amount to
force, intimidation. or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what
is a scurrilous libel against the Philippines. If we allow public speakers to be picked up simply because
what they say is irritating or obnoxious to the ears of a peace officer or critical of government policy and
action, we will undermine all pronouncements of this Court on the need to protect that matrix of all
freedoms, which is freedom of expression. At the very least, a warrant of arrest after a preliminary
examination by a Judge is essential in this type of offense.
Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations
regarding "continuing oftenses." To base warrantless arrests on the doctrine of continuing offense is to
give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition
are political offenses where the line between overt acts and simple advocacy or adherence to a belief is
extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may
be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal
conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant
of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be
Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels
who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms
against the Government.
The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner
would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot

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understand why the authorities preferred to bide their time, await the petitioner's surfacing from
underground, and pounce on him with no legal authority instead of securing warrants of arrest for his
apprehension. The subsequent conviction of a person arrested illegally does not the warrantless arrest.
In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso
Nazareno was one of the killers came to the attention of peace officers only on December 28, 1988 or
fourteen (14) days later. To say that the offense "has in fact just been committed" even if 14 days have
lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A warrant of arrest is essential
in this case. I vote to grant the motion for reconsideration.
The subsequent conviction of a person arrested illegally does not reach back into the past and render
legal what was illegal. The violation of the constitutional right against illegal seizures is not cured by the
fact that the arrested person is indeed guilty of the offense for which he was seized. A government of
laws must abide by its own Constitution.
CONSIDERING THE FOREGOING, I VOTE TO:
(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No.
83162;
(2) GRANT the motion for reconsideration in G.R. No. 85727;
(3) GRANT the motion for reconsideration in G.R. No. 86332;and
(4) GRANT the motion for reconsideration in G.R. No. 81567.
CRUZ, J., Separate Opinion:
I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were
arrested inflagrante, or subsequently posted bail or chose to remain in the custody of the military, or
voluntarily permitted the search of the house without warrant. I do not think that under the applicable
circumstances the petitioners can validly complain that they are being unlawfully detained.
But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121
SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the ground that they
were apprehended for the continuing offenses of rebellion and other allied crimes.
We find in the said decision this partltularly disturbing observation, which was quoted with approval in the
originalponencia:
The arrest of persons involved in the rebellion, whether as its fighting armed elements, or
for committing non-violent acts but in furtherance of the rebellion, is more an act of
capturing them in the course of an armed conflict, to quell the rebellion, than for the
purpose of immediately prosecuting them in court for a statutory offense. The arrest,
therefore, need not follow the usual procedure in the prosecution of offenses which
requires the determination by a judge of the existence of probable cause before the
issuance of arrest and the granting of bail of the offense is bailable. Obviously, the
absence of a judicial warrant is no legal impediment to arresting or capturing persons
committing overt acts of violence against govenment forces, or any other milder acts but
equally in pursuance of the rebellious movement. (Emphasis supplied.)
The treatment suggested envisions an actual state of war and is justified only when a recognition of
beuigerency is accorded by the legitimate government to the rebels, resulting in the application of

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the laws of war in the regulation of their relations. The rebels are then considered alien enemies-to be
treated as prisoners of war when captured-and cannot invoke the municipal law of the legitimate
government they have disowned. It is in such a situation that the processes of the local courts are not
observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed to have
renounced by their defiance of the government.
But as long as that recognition has not yet been extended, the legitimate govenment must treat the rebels
as its citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and
especially those guaranteed by the Constitution. Principal among these in our country are whose
embodied in the Bill of Rights, particularly those guaranteeing due process, prohibiting unreasonable
searches and seizures, allowing bail, and presuming the innocence of the accused. The legitimate
government cannot excuse the suppression of these rights by the "exigencies" of an armed conflict that at
this time remains an intemal matter governed exclusively by the laws of the Republic of the Philippines.
Treatment of the rebels as if they were foreign invaders or combatants is not justified in the present
situation as our government continues to prosecute them as violators of our own laws. Under the doctrine
announced in Garcia-Padilla, however, all persons suspected as rebels are by such suspicion alone
made subject to summary arrest no different from the unceremonious capture of an enemy soldier in the
course of a battle. The decision itself says that the arrest "need not follow the usual procedure in the
prosecution of offenses" and "the absence of a judicial warrant is no impediment" as long as the person
arrested is suspected by the authorities of the "continuing offense" of subversion or rebellion or other
related crimes. International law is thus substituted for municipal law in regulating the relations of the
Republic with its own citizens in a purely domestic matter.
As for the duration of the offenses, the decision contained the following pronouncement which this Court
has also adopted as its own:
. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses committed in the furtherance on the occasion
thereof, or incident thereto, or in connection therewith under Presidential Proclamation
No. 2045, are all in the nature of continuing offenses which set them apart from the
common offenses, aside front their essentially involving a massive conspiracy of
nationwide manitude. (Emphasis supplied.)
The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by simply
placing the suspect "under surveillance," to lay the basis for his eventual apprehension. Once so placed,
he may at any time be arrested without warrant on the specious pretext that he is in the process of
committing the "continuing offense," no matter that what he may be actuallly doing at the time is a
perfectly innocent act.
In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of
undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in his
sickbed, engaged in the continuing offense of rebellion against the State. In further justification, the Court
says that the arresting officers acted on "confidential information" that he was in the hospital, which
information "was found to be true." This is supposed to have validated the determination of the officers
that there was "probable cause" that excused the absence of a warrant.
My own impression is that probable cause must be established precisely to justify the issuance of a
warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing the
warrant, not the arresting officer who says it is not necessary.
In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious
remarks made by him the day before. The Court says his case is not covered by the Garcia-Padilla
doctrine but approves the arrest just the same because the remarks were supposed to continue their

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effects even to the following day. The offense was considered as having been just committed (to make it
come under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse.
It was worse in the case of Nazareno, who was also arrested without warrant, and no less
than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day of his
arrest that he was identified as one of the probable killers, thus suggesting that the validity of a
warrantless arrest is reckoned not from the time of the commission of an offense but from the time of the
Identification of the suspect.
Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter "has
committed, is actually committing, or is attempting to commit an offense" or when an offense "has in fact
just been committed." The requirement of immediacy is obvious from the word "just," which, according to
Webster, means "a very short time ago." The arrest must be made almost immediately or soon after these
acts, not at any time after the suspicion of the arresting officer begins, no matter how long ago the offense
was committed.
I am also uneasy over the following observations in the present resolution which I hope will not be the
start of another dangerous doctrine:
The Court, it is true, took into account the admissions of the arrested persons of their
membership in the CPP/NPA, as well as their ownership of the unlicensed firearms,
ammunitions and documents in their possession. But again, these admissions, as
revealed by the records, strengthen the Court's perception that truly the grounds upon
wmch the arresting officers based their arrests without warrant, are supported by
probable cause, i.e., that the persons arrested were probably guilty of the commission of
certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court.
I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt, G.R.
No. 91107, June 19, 1991, where I noted: "The conclusion that there was probable cause may have been
influenced by the subsequent discovery that the accused was carrying a prohibited drug. This is
supposed to justify the soldier's suspicion. In other words, it was the fact of illegal possession that
retroactively established the probable cause that validated the illegal search and seizure. It was the fruit
of the poisonous tree that washed clean the tree itself."
I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made
in the cases before us is a step back to that shameful past when individual rights were wantonly and
systematically violated by the Marcos dictatorship. It seems some of us have short memories of that
repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the
Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate
individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile
to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any
other person in this country. That is what democracy is all about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in the Resolution disposing of the Motion for
Reconsideration.
At the same time, however, I feel compelled to dissent from certain statements made by the majority
principally concerning the applicability of the "continuing crimes" doctrine to the problem of arrests without
warrants. It seems clear that these statements are really obiter dicta, since they are quite unnecessary for
sustaining the actual results reached in the majority Resolution. This was summarily pointed out in my
very brief statement concurring in the result reached in the original Decision of the Court dated 9 July
1990. The subsequent developments in several of the cases here consolidated, which are carefully

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detailed in the majority Resolution, make this even clearer. Nonetheless, the majority Resolution has
taken the time and trouble expressly to reiterate the "continuing crimes" doctrine as applicable in respect
of warrantless arrests. Although the above statements are obiter, they have been made and, I believe,
need to be addressed to some extent and the inter-relation of the "continuing crimes" doctrine with
constitutional rights explored.
1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of
persons. Article III Section 2 of the Constitution reads:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized. (Emphais
supplied)
Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual members
of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of
which complies with the constitutional procedure specified in Article III Section 2. Arrests made without a
warrant issued by a judge after complying with the constitutional procedure, are prima facie unreasonable
seizures of persons within the meaning of Article III Section 2.
2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are
unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and
(b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the
law, or a private person for that matter, may lawfully arrest a person without previously securing a warrant
of arrest. The full text of Section 5, Rule 113 follows:
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;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that judicial
interpretation and application of Section 5(a) and (b) must take those provision for what they are: they
areexceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm
must be strictly construed so as not to render futile and meaningless the constitutional rule requiring
warrants of arrests before the persons of individuals may be lawfully constrained and seized. The
ordinary rule generally applicable to statutory provisions is that exceptions to such provisions must not be
stretched beyond what the language in which they are cast fairly warrants, and all doubts should be

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resolved in favor of the general provision, rather than the exception. 1 This rule must apply with special
exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional
guarantee. 2 Exceptions to such a guarantee must be read with especial care and sensitivity and kept
within the limits of their language so to keep vital and significant the general constitutional norms
warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:
II. As the protection of the citizen and the maintenance of his constitutional rights is one
of the highest duties and privileges of the court. these constitutional guaranties should be
given a liberal construction or a strict construction in favor of the individual, to prevent
stealthy encroachment upon, or gradual depreciation of, the rights secured by
them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237
Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes
authorizing searches and seizures or search warrants must be strictly construed (Rose
vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed.
[2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)
held that:
. . . All illegal searches and seizures are unreasonable whith lawful ones are
reasonable. 4
In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:
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.
At the time of the appellant's arrest, he was not in actual possession of any firearm or
subversive document. Neither was he commit ting 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 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 vilated and so deserving of full protection. 6 (emphasis supplied)
4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the
presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an
offense, in the presence of the arresting officer, may be seen to be the substitute, under the
circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for
immediate, even instantaneous, action on the part of the arresting officer to suppress the breach of public
order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer
to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term
"presence" in this connection is properly and restrictively construed to relate to acts taking place within
the optical or perhaps auditory perception of the arresting officer. 7 If no overt, recognizably criminal, acts
occur which are perceptible through the senses of the arresting officer, such officer could not, of course,
become aware at all that a crime is being committed or attempted to be committed in his presence. 8 It is
elementary that purely mental or psychological phenomena, not externalized in overt physical acts of a
human person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus. If no such overt acts are actually

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taking place in the presence or within the sensor perception of the arresting officer, there would, in
principle, be ample time to go to a magistrate and ask for a warrant of arrest. There would, in other words,
not be that imperious necessity for instant action to prevent an attempted crime, to repress the crime
being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the
justification in law of warrantless arrests under Section 5(a).
5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be
sustained under this subsection: 1) the offense must have "just been committed" when the arresting
officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts indicating tha the
person to be arrested has committed the offense. In somewhat different terms, the first requirement
imports that th effects or corpus of the offense which has just been committed are still visible: e.g. a
person sprawled on the ground, dead of gunshot wound; or a person staggering around bleeding
profusely from stab wounds. The arresting officer may not ha seen the actual shooting or stabbing of the
victim, and thereto the offense can not be said to have been committed "in [his] presence." The
requirement of "personal knowledge" on the part of the arresting officer is a requirement that such
knowledge must have been obtained directly from sense perception the arresting officer. That
requirement would exclude informtion conveyed by another person, no matter what his reputation for,
truth and reliability might be. 9 Thus, where the arresting officer comes upon a person dead on the street
and sees a person running away with a knife from where the victim is sprawled the ground, he
has personal knowledge of facts which render it highly probable that the person fleeing was the doer of
the criminal deed. The arresting officer must, in other words, perceive through his own senses some act
which directly connects the person to be arrested with the visible effects or corpus of a crime which has
"just been committed."
6. The use of the words "has in fact just been committed" underscores the requirement that the time
interval between the actual commission of the crime and the arrival of the arresting officer must be brief
indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b) by the 1985 Rules on
Criminal Procedures, no doubt in order to underscore the point here being made. In the second place, a
latitudinarian view of the phrase "has in fact just been committed" would obviously render pointless the
requirement in Section 5(a) that the crime must have been committed "[in] the presence" of the arresting
officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after the occurrence of the
killing with which he was charged along with other persons, cannot by any standard be justified under
Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the
day after the shooting of the policemen in which he was suspected to have been a participant. While 1day may be substantially different from 14-days, still it must be pointed out that at the time Dural was
arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the St. Agnes
Hospital in Quezon City could not reasonably be said to have been just committed. There was no
showing, nor did the Court require it, that the arresting officers had been in "hot pursuit" of Dural
beginning at the scene of the killing and ending the next day in the hospital.
7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who is
determining "probable cause" right at the scene of the crime, is in a sense more exacting than the
standard imposed by the Constitution upon the judge who, in the seclusion of his chambers, ascertains
"probable cause" by examining the evidence submitted before him. The arresting officer
must himself have "personal knowledge"; the magistrate may rely upon the personal knowledge of the
witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the majority
begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in the next page
with a very diluted standard of "reasonable belief and "good faith" on the part of the arresting officers. The
stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they
are acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant
may later turn out to be guilty of the offense he was suspected of in the first place is, course, quite beside
the point. Even a person secretly guilty some earlier crime is constitutionally entitled to be secure from
warrantless arrest, unless he has in fact committed physically observable criminal acts in the presence of
the arresting officer or hadjust committed such acts when the arresting officer burst upon the scene.

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8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes," shows
that doctrine is here being used as a substitute for the requirement under Section 5(a) that the offense
"has in fact just been presence of the arresting officer arrived, but rather because the person to be
arrested is suspected of having committed a crime in the future. The pertinent portion of the majority
Resolution reads:
. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF
ARREST, simply because he was, at the time of arrest, confined in the St. Agnes
Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of his
mission as a "sparrow" (NPA member) did not end there and then. Dural, given another
opportunity, would have shot or would shoot other policemen anywhere as agents or
representatives of organized government. It is in this sense that subversion like rebelion
(or insurrection) is perceived here as a continuing offense. Unlike other so-called
"common" offenses, i.e., adultery, murder, arson, etc., which generally end upon their
commission, subversion and rebellion are anchored on an ideological base which
compels the repetition of the same acts of lawlessness and violence until the overriding
objectives of overthrowing organized government is attained. (Emphasis supplied)
9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found in our
case law offers no reasonable basis for such use of the dotrine. More specifically, that doctrine, in my
submission, doesnot dispence with the requirement that overt acts recognizably criminal in character
must take place in the presence of the arresting officer, or must have just been committed when the
arresting officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine in our
case law (before rendition of Garcia-Padilla vs. Enrile 10 does not sustain warrantless arrests of person to
be arrested is, as it were, merely resting in between specific lawless and commit the moment he gets an
opportunity to do so.
Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2)
problems: the first problem is that of determination of whether or not a particular offense was committed
within the territorial jurisdiction of the trial court; the second problem is that of determining whether a
single crime or multiple crimes were committed where the defense of double jeopardy is raised.
10. In respect of the first problem, the gist of our case law is that where some of the ingredients or
elements of an offense taken place within the territorial jurisdiction of one court and some other
ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or
malversation) either one of the two courts has jurisdiction to try the offense. Where all of the essential
elements of a crime take place within the territory of one court but "by reason of he very nature of the
offense committed" the violation of the law is deemed to be "continuing," then the court within whose
territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with
such offense. In the latter case, the offense is deemed to be continuing because some or all of the
elements constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and
illegal detention; libel; evasion of service of sentence). The criminal acts are regarded as repeated or as
continuing within the province or city where the defendant was found and arrested. 11 Clearly, overt acts
of the accussed constituting elements of the crime charged must be shown to have been committed
within the territorial jurisdiction of the court where he is charged.
11. Turning to the second type of problem, the question is normally presented in terms of whether one
crime or multiple crimes were committed by the accused. Where the series of acts actually alleged and
proven to have been committed by the accused constituted only one and the same crime, the defense of
double jeopardy becomes available where a second information is filed covering acts later in the series.
Upon the other hand, where the acts of the accused constituted discrete, multiple offenses, each act
comprising a distinct and separate offense, the double jeopardy defense is non-available. 12 The point
worth stressing is that in passing upon the issue relating to the unity or multiplicity of offense committed,
the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be
shown.

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12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function
to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the
constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the
elements of the offense charged are shown to have been committed by the person arrested without
warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun
or committed elsewhere, continued to be committed by the person arrested in the presence of the
arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is
infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite
beginning and end in time and space (such as the killing or wounding of a person or kidnapping and
illegal dentention or arson) but rather of such problematic offenses as membership in or affiliation with or
becoming a member of, a subversive association or organization. For in such cases, the overt constitutive
acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or
objectives of the organization involved. Note, for instance, the following acts which constitute prima
facie evidence of "membership in any subversive association:" 13
a) Allowing himself to be listed as a member in any book or any of the lists, records,
correspondence, or any other document of the organization;
b) Subjecting himself to the discipline of such association or organization in any form
whatsoever;
c) Giving financial contribution to such association or organization in dues, assessments,
loans or in any other forms;
xxx xxx xxx
f) Conferring with officers or other members of such association or organization in
furtherance of any plan or enterprise thereof;
xxx xxx xxx
h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to
promote the objectives and purposes of such association or organization;
xxx xxx xxx
k) Participating in any was in the activities, planning action, objectives, or purposes of
such association or organization;
xxx xxx xxx
It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures
makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's
function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to
protect the liberties of private individuals. Our police forces must simply learn to live with the requirements
of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law.
Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very
freedoms which make our polity worth protecting and saving.
REGALADO, J.: Separate Opinion:
While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such
concurrence, I wish to unburden myself of some reservations on the rationale adopted in G.R. No. 86332.

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It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while
Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls
under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came
to know that Nazareno was probably one of those guilty in the killing of Bunye II."
I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a
peace officer or a private person to effect a warrantless arrest, specifically conditions that grant of
authority upon the situation "(w)hen an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it."
It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the
1985 Rules of Criminal Procedure, the particular revision of paragraph (b) of the aforesaid section
consisted in imposing the requirements that the person making the arrest has personal knowledge of the
facts indicating that the arrestee is responsible for an offense which has just been committed.
Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo
Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock in the
morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he
pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the
same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for
investigation."
Since, clearly, the arresting police agents merely acted upon the information imparted by one of the
suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that the person
making the arrest must have had personal knowledge of factual indications regarding the complicity or
liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have
been designed to obviate the practice in the past of warrantless arrests being effected on the basis of or
supposed reliance upon information obtained from third persons who merely professed such knowledge
or, worse, concocted such reports for variant reasons not necessarily founded on truth.
Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may
result from imputations based on dubious motives, it is now required that the crime must have just been
committed. The recency contemplated here, in relation to the making of the warrantless arrest, is the time
when the crime was in fact committed, and not the time when the crime was in fact committed, and not
the time when the person making the arrest learned or was informed of such commission. Otherwise, at
the risk of resorting to reductio ad absurdum, such warrantless arrests could be validly made even for a
crime committed, say, more than a year ago but of which the arresting officer received information only
today.
The brevity in the interval of time between the commission of the crime and the arrest, as now required by
Section 5(b), must have been dictated by the consideration, among others, that by reason of such
recency of the criminal occurrence, the probability of the arresting officer acquiring personal and/or
reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured.
The longer the interval, the more attenuated are the chances of his obtaining such verifiable knowledge.
In the case under consideration, the obtention of information of a crime committed fourteen (14) days
earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the
information he is acting upon and to acquire personal knowledge thereof after such verification.
It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause
and it was not whimsical, at least, in this instance. It is correct to say that prevailing conditions affecting
national security and stability must also be taken into account. However, for the reasons above
elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113 had been
complied with in this case. It is true that the corresponding information was filed against Nazareno shortly
after his arrest but that, precisely, is another cause for controversy. Definitely, if the rules on arrest are

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scrupulously observed, there would be no need for the usual invocation of Ilagan as a curative balm for
unwarranted incursions into civil liberties.
SARMIENTO, J.: dissenting:
I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has not shown
why the arrests in question should after all be sustained.
According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant and
that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule 113, of the
Rules of Court. According to the majority, he, Dural, was after all committing an offense (subversion being
supposedly a continuing offense) and that the military did have personal knowledge that he had
committed it. "Personal knowledge," according to the majority, is supposedly no more than "actual belief
or reasonable grounds . . . of suspicion," and suspicion is supposedly 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 guilty of the person to be arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest. 2
As I said, I dissent.
First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by
Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt acts." 4 In People
vs. Ferrer 5 this Court defined "overt acts" as follows:
. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally
unnecessary to charge Communists in court, as the law alone, without more would
suffice to secure their punishment. But the undeniable fact is that their guilt still has to be
judicially established. The Government has yet to prove at the trial that the accused
joined the Party knowingly, willfully and by overt acts, and that they joined the Party,
knowing its subversive character and with specific intent to further its basic objective, i.e.,
to overthrow the existing government by force, deceit, and other illegal means and place
the country under the control and domination of a foreign power.
As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has taken
pains to explain, the law requires more than mere membership in a subversive organization to make the
accused liable. I respectfully submit that for purposes of arrest without a warrant, that above "overt acts"
should be visible to the eyes of the police officers (if that is possible), otherwise the accused can not be
said to be committing any offense within the contemplation of the Rules of Court, to justify police action,
and otherwise, we would have made "subversion" to mean mere "membership" when, as Ferrer tells us,
subversion means more that mere membership.
I find strained that majority's interpretation of "personal knowledge," as the majority would interpret it, as
no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based on actual facts . . .
[and] founded on probable cause, coupled with good faith . . . " 6 I submit that personal knowledge means
exactly what it says that the peace officer is aware that the accused has committed an offense, in this
case, membership in a subversive organization with intent to further the objectives thereof. It is to be
noted that prior to their amendment, the Rules (then Section 6) spoke of simple "reasonable ground"
which would have arguably encompassed "actual belief or suspicion . . . coupled with good faith" referred
to by the majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully

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submit that to give to "personal knowledge" the same meaning as "reasonable ground" is to make the
amendment as useless exercise.
What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had been
wounded and was recuperating in the hospital, and that that person was Rolando Dural. Clearly, what we
have is second-hand, indeed, hearsay, information, and needless to say, not personal knowledge.
I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar arrest
because of lack of personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by
the arresting officers came in its entirety from the information furnished by [another] . . ." 8 I do not see
how We can act differently here.
I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken. Santos
involved a prosecution for coercion (against a peace officer for affecting an arrest without a warrant).
Santos, however, did in fact affirm the illegality of the arrest but absolved the peace officer on grounds of
good faith. Santos did not say that so long as he, the peace officer, was acting in good faith, as the
majority here says that the military was acting in good faith, the arrest is valid. Quite to the contrary,
Santos suggested that notwithstanding good faith on the part of the police, the arrest is nevertheless
subject to question.
As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently
swallow the version of the military as if in the first place, there truly was an information, and that it was
reliable, and that "it was found to be true;" 10 and as if, in the second place, the hospital authorities (the
alleged informants) could have legally tipped the military under existing laws. We have, it should be
noted, previously rejected such a species of information because of the lack of "compulsion for [the
informant] to state truthfully his charges under pain of criminal prosecution." 11 Here, it is worse, because
we do not even know who that informant was.
The majority is apparently unaware that under Executive Order No. 212, amending Presidential Decree
No. 169, hospital establishments are required to report cases of acts of violence to "government health
authorities" not to the military.
I am concerned that if the military were truly armed with reliable information and if it did have personal
knowledge to believe that Dural had committed an offense, there was no reason for the military to ignore
the courts, to which the Constitution after all, gives the authority to issue warrants. As People
vs. Burgos held:
More important, we find no compelling reason for the haste with which the arresting
officers sought to arrest the accused. We fail to see why they failed to first go through the
process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe
that the accused had truly committed a crime. There is no showing that there was a real
apprehension that the accused was on the verge of flight or escape. Likewise, there is no
showing that the whereabouts of the accused were unknown. 12
I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon
Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up under similar
circumstances. As the majority points out, the military had (again) acted on a mere tip-the military had no
personal knowledge (as I elaborated what personal knowledge means). Second, I do not think that the
majority can say that since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly
admitted), immediate arrests were "prudent" and necessary. As I said, that Roque, et al. were admitted
"NPA's" is (was) the question before the trial court and precisely, the subject of controversy. I think it is
imprudent for this Court to pass judgment on the guilt of the petitioners-since after all, and as the
majority points out, we are talking simply of the legality of the petitioner's arrests.

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More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and
evidently, the Court is not bound by bare say-so's. Evidently, we can not approve an arrest simply
because the military says it is a valid arrest (the accused being "NPA's anyway") that would be
abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential
information."
According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence
of the accused. I certainly hope not, after the majority referred to Rolando Dural as a "sparrow man" and
having Amelia Roque, et al. admit to being NPA's."
It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the
guilt of the accused still has to be established, since meanwhile, the accused are in fact being deprived of
liberty. Arrest to me, is something to crow about, even if in the opinion of the majority, it is nothing to crow
about (a mere "administrative measure").
I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos.
85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering supposedly, on
November 22, 1988, the following:
Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13
Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a
continuing offense. Obviously, the majority is not saying that it is either, but that:
. . . Many persons may differ as to the validity of such perception and regard the
language as falling within free speech guaranteed by the Constitution. But, then, Espiritu
has not lost the right to insist, during the trial on the merits, that he was just exercising his
right to free speech regardless of the charged atmosphere in which it was uttered. But,
the authority of the peace officers to make the arrest, without warrant, at the time the
words were uttered, or soon thereafter, is still another thing. In the balancing of authority
and freedom, which obviously becomes difficult at times, the Court has, in this case, titled
the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be
noted that the Court has ordered the bail for Espiritu's release to be reduced from
P60,000.00 to P10,000.00.14
And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected
speech, but apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking
of mere arrests, and as far as arrests are concerned, "the Court has, in this case, titled in favor of
authority," 15 and (3) we have, anyway, given a reduced bail to the accused.
First, that the accused's statement is in the category of free speech is not only plain to my mind, it is a
question I do not think the majority can rightly evade in these petitions without shirking the Court's
constitutional duty. It is to my mind plain, because it does not contain enough "fighting words" recognized
to be seditious. 16 Secondly, it is the very question before the Courtwhether or not the statement in
question constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my
mind and I am wondering why we can not answer it.
What the majority has not answered, as I indicated, is that inciting to sedition is in no way a continuing
offense, and as I said, the majority is not apparently convicted that it is, either. Of course, the majority
would anyway force the issue: "But the authority of the peace officers to make the arrest, without warrant,
at the time the words were uttered, or soon thereafter, is still another thing." 17 First, Espiritu was picked
up the following day, and in no way is "the following day" "soon thereafter". Second, we would have
stretched the authority of peace officers to make warrantless arrests for acts done days before. I do not
think this is the contemplation of the Rules of Court.

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As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or
escape" 19 and there was no impediment for the military to go through the judicial processes, as there
was none in the case of Burgos.
In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to be
committed or had just been committed," and unless there existed an urgency as where a moving vehicle
is involved, instant police action can not be justified.
"In the balancing of authority and freedom," states the majority, "the Court has, in this case, titled in favor
of authority but only for purposes of the arrest (not conviction)." 21 It is a strange declaration, first,
because it is supported by no authority (why the Court should "tilt" on the side of Government), and
second, because this Court has leaned, by tradition, on the side of liberty as the custodian of the Bill of
Rights even if we were talking of "simple" arrests.
I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this case," 22 as if
to say that normally, this Court would have tilted the scales the other way. I do not understand why these
cases are apparently, special cases, and apparently, the majority is not telling us neither. I am wondering
why, apart from the fact that these cases involved, incidentally, people who think differently from the rest
of us.
The majority goes on:
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest
without warrant was made only on 28 December 1988, or 14 days later, the arrest falls
under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police
authorities came to know that Nazareno was probably one of those guilty in the killing of
Bunye II. 23
With all due respect, I do not think that the majority is aware of the serious implications of its
pronouncement on individual rights (and statutory construction in general), and I feel I am appropriately
concerned because as a member of the Court, I am co-responsible for the acts of my colleagues and I
am afraid that I may, rightly or wrongly, be in time made to defend such an indefensible pronouncement.
Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the
authorities must have "personal knowledge."
In no way can an offense be said to have been "just committed" fourteen days after it was in fact
(allegedly) committed. In no way can the authorities be said to have "personal knowledge" two weeks
thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a crime
that had "just been committed;" whatever "personal knowledge" they have is necessarily "personal
knowledge" of a crime committed two weeks before.
In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the
Rules.
I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am
saying it, (or worse, that I am "coddling criminals"). I am not saying that a suspected criminal, if he can not
be arrested without a warrant, can not be arrested at all but that the military should first procure a
warrant from a judge before effecting an arrest. It is not too much to ask of so-called law enforcers.
As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely
limited it by way of an exception, precisely, to the general rule, mandated by the Constitution no less, that
arrests may be done only through a judicial warrant. As it is, the majority has in fact given the military the

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broadest discretion to act, a discretion the law denies even judges 24 today it is fourteen days,
tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not be in fact
unreasonable, following the theory of the majority, since the military can claim anytime that it "found out
only later," as the majority did not find it unreasonable for the Capital Command to claim that it "came to
know that Nazareno was probably one of those guilty in the killing of Bunye II" 25and none of us can
possibly dispute it.
I would like to stress strongly that we are not talking of a simple "administrative measure" alonewe are
talking ofarrests, of depriving people of libertyeven if we are not yet talking of whether or not people are
guilty. That we are not concerned with guilt or innocence is hardly the point, I respectfully submit, and it
will not minimize the significance of the petitioners' predicament.
With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia Roque, et
al., ignored the fact that Buenaobra's alleged "admission" (actually, an uncounselled confession) was
precisely, the basis for Buenaobra's arrest. It is to beg the question, I respectfully submit, to approve the
military's action for the reason that Buenaobra confessed, because Buenaobra confessed for the reason
that the military, precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra's
innocence (although it is supposed to be presumed) but I can not imagine that Buenaobra would have
voluntarily proclaimed to the military that he was an NPA courier so that the military could pounce on him.
I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been better days. I
do not see how this court can continuously sustain them "where national security and stability are still
directly challenged perhaps with greater vigor from the communist rebels." 28 First and foremost, and as
the majority has conceded, we do not know if we are in fact dealing with "Communists." The case of
Deogracias Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security"
are old hat the dictator's own excuses to perpetuate tyranny, and I am genuinely disappointed that we
would still fall for old excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be
possibly justified in a regime that respects the rule of law that the Presidential Commitment Order
(PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective
arrest (Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security" are
valid grounds for warrantless arrests under Section 5(b) of Rule 113.
I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent jurisprudence
(e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no longer be defended, if
they could have been defended, in Plaza Miranda or before our own peers in the bar.
"What is important," says the majority, "is that every arrest without warrant be tested as to its legality,
via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to patronize the
petitioners and simply, to offer a small consolation, when after all, this Court is validating their continued
detention. 30 With all due respect, I submit that it is nothing for which the public should be elated.
A Final Word
As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one
principle: The State has no right to bother citizens without infringing their right against arbitrary State
action. "The right of the people," states the Constitution, "to be secure in their persons, houses, papers,
and effects against unreasonable searchers and seizures of whatever nature and for any purpose shall
be inviolable . . . ." 31 "The State," the Charter likewise states, "values the dignity of every human person
and guarantees full respect for human rights." 32 The Constitution states the general rule the majority
would make the exception the rule, and the rule the exception. With all due respect, this is not what
constitutionalism is all about.
I submit that the "actual facts and circumstances" the majority refers to are, in the first place, doubtful, the
"actual facts and circumstances" being no more than "confidential information" (manufactured or genuine,

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we have no way of telling) and in the second place, any information with which the military (or police)
were armed could no more than be hearsay, not personal, information. I submit that the "actual facts and
circumstances" the majority insists on can not justify the arrests in question under Section 5(b) of Rule
113, the rule the majority insists is the applicable rule.
Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso Nazareno
are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was arrested one day
after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen days after it (allegedly,
murder). Yet, the majority would approve the police's actions nonetheless because the police supposedly
"found out only later." I submit that the majority has read into Section 5(b) a provision that has not been
written there.
"More than the allure of popularity of palatability to some groups," concludes the majority, "what is
important is that the Court be right." 33
Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil
is a question, on the contrary, of whether or not the military (or police), in effecting the arrests assailed,
had complied with the requirements of law on warrantless arrests. Umil is a question of whether or not
this Court, in approving the military's actions, is right.
In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture,
hamletting, bombings, saturation drives, and various human rights violations increase in alarming rates. In
its update for October, 1990, the Task Force Detainees of the Philippines found:
An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;
Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990,
4,419, illegally;
Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage,
and 109 remained missing after their arrest;
Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were
wounded;
The victims belonged to neighborhood and union organizations;
Since February, 1986, 532 of those illegally arrested were women;
From January to June 1990, 361 children were detained for no apparent reason;
One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing,
shellings, and food blockades undertaken by the military since 1988. 34
It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also
disappointed that it is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful that despite
my departure, it will not be too late.
Motions denied.

155
[G.R. No. 130805. April 27, 2004]
PEOPLE
OF
THE
PHILIPPINES, petitioner, vs.
[1]
KIZAKI, respondents.

TOKOHISA

KIMURA

and

AKIRA

DECISION
AUSTRIA-MARTINEZ, J.:
[2]

Appellants Tomohisa Kimura and Akira Kizaki seek reversal of the decision dated June 27, 1997 in
Criminal Case No. 94-5606, rendered by the Regional Trial Court (Branch 66), Makati City, finding them
guilty beyond reasonable doubt of violation of Section 4, Article II of Republic Act No. 6425, as amended
by R.A. No. 7659, otherwise known as the Dangerous Drugs Act of 1972, and sentencing each of them to
suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00.
The Information dated August 8, 1994 against the accused alleges:
The undersigned State Prosecutor of the Department of Justice accuses TOMOHISA KIMURA and
AKIRA KIZAKI of violation of Section 4, Article II of Republic Act 6425, as amended by R.A. 7659,
otherwise known as the Dangerous Drugs Act of 1972, committed as follows:
That on or about June 27, 1994 in Makati, Metro Manila and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually helping one another, did then
and there willfully, unlawfully and feloniously transport and deliver without lawful authority approximately
40,768 grams of Indian hemp (marijuana), a prohibited drug, in violation of the aforecited law.
CONTRARY TO LAW.

[3]

Upon arraignment on October 10, 1994, the two accused, through counsel, entered their separate
[4]
pleas of Not Guilty to the crime charged; whereupon, the trial of the case ensued.
[5]

The testimonies of the following prosecution witnesses, to wit: SPO4 Juan Baldovino, Jr., SPO1
[6]
Rolando Cabato, SPO1 Edmundo Badua, Chief Inspector Nilo Anso, PO3 Alfredo Cadoy, SPO1 Manuel
Delfin and Forensic Chemist, Police Inspector Sonia Ludovico, sought to establish the following facts:
In the morning of June 27, 1994, Maj. Anso, head of Delta Group, Narcotics Command (NARCOM) I,
North Metro District Command, Camp Karingal, Quezon City, received information from a confidential
informant that a certain Koichi Kishi and Rey Plantilla were engaged in the selling of illegal drugs at the
[7]
Cash and Carry Supermarket, Makati City. Acting on said information, Maj. Anso organized a team
[8]
composed of SPO4 Baldovino, Jr., SPO1 Cabato and PO3 Cadoy to conduct surveillance of the area. A
buy-bust operation was launched and PO3 Cadoy was designated to act as poseur-buyer and they
[9]
prepared the buy-bust money consisting of one P500.00 bill and five pieces of P100.00 bill.
At around 3:00 in the afternoon of the same day, the team together with the informant arrived at the
[10]
Cash and Carry Supermarket and conducted surveillance of the area. Later, the informant was able to
contact the targets who told him that they will be arriving at 8:00 in the evening at the parking area of the
[11]
Cash and Carry Supermarket. At around 8:00 in the evening, Koichi and Rey arrived and were met by
[12]
PO3 Cadoy and the informant. PO3 Cadoy gave the marked money worthP1,000.00 to Rey and Koichi
who then handed him the shabu. PO3 Cadoy scratched his head as a pre-arranged signal of the
[13]
[14]
consummation of the sale. The operatives were about five meters from the suspects. While the team
was approaching, PO3 Cadoy held Koichi by the hand while Rey scampered away to the direction of the
[15]
South Superhighway. The team brought Koichi to a safe area within the Cash and Carry Supermarket
and interrogated him. They learned from Koichi that his friends/suppliers will arrive the same evening to
[16]
fetch him. Several minutes later, a white Nissan Sentra car driven by appellant Kimura with his coappellant Kizaki seating at the passenger seat arrived at the parking area. Koichi pointed to them as the
[17]
ones who will fetch him. Appellants remained inside the car for about ten to fifteen minutes. Then, a
certain Boy driving a stainless jeep, without a plate number, arrived and parked the jeep two to three

156
[18]

parking spaces away from the Sentra car. Boy approached the Sentra car and after a few minutes,
appellants got out of their car. Appellant Kizaki went to the stainless jeep and sat at the passenger
[19]
seat. Boy and appellant Kimura went to the rear of the Sentra car and opened its trunk. Appellant
[20]
Kimura got a package wrapped in a newspaper and gave it to Boy who walked back to his jeep. While
Maj. Anso and SPO4 Baldovino, Jr. were approaching to check what was inside the wrapped newspaper,
appellant Kimura ran but was apprehended while Boy was able to board his jeep and together with
[21]
appellant Kizaki who was seated at the passenger seat sped off towards South Superhighway. The
[22]
police operatives then inspected the contents of the trunk and found packages of marijuana. They
brought Koichi and appellant Kimura to the headquarters and turned over the seized marijuana to the
[23]
investigator who made markings thereon. Maj. Anso reported the escape of appellant Kizaki to their
[24]
investigation section.
The seized packages which were contained in 3 sacks were brought to the PNP Crime Laboratory
[25]
on June 29, 1994. Forensic Chemist Sonia Sahagun-Ludovico testified that the contents of the sacks
[26]
weighed 40,768 grams and were positive to the test of marijuana.
On June 29, 1994, appellant Kizaki while having dinner with his friends at the Nippon Ichi Restaurant
[27]
located at Mabini, Malate, Manila was arrested by another NARCOM group led by Maj. Jose F.
[28]
Dayco.
Appellants defense is denial and alibi. In support thereof, both appellants were called to the witness
stand.
Appellant Kimuras testimony is as follows: In the afternoon of June 27, 1994, Kimura was in the
house of his co-appellant Kizaki at Dian Street, Makati City, together with Koichi Kishi, Luis Carlos and a
[29]
certain Sally and Boy. In the evening of the said date, Kimura borrowed the car of Kizaki in order to
get his (Kimuras) television from his house located in Evangelista Street, near the Cash and Carry
[30]
Supermarket, and bring the same to a repair shop. On their way to Kimuras house, Koichi requested
Kimura to pass by Cash and Carry Supermarket because Koichi needed to meet a certain Rey who was
borrowing money from him. Upon reaching Cash and Carry, Kimura parked the car about twenty meters
from its entrance, then Koichi and Carlos alighted from the car and Koichi handed something to
[31]
Rey. Shortly thereafter, Koichi and Carlos were grabbed by two men from behind. Then four men
approached the car and one guy ordered him to sit at the back and together with Koichi and Carlos, they
[32]
were all brought to Camp Karingal allegedly for violating Sec. 4 of Republic Act No. 6425. Kimura was
asked questions about the address and business of Kizaki. Kimura denied that there was marijuana in
the car on the night of June 27, 1994 but claims that he saw marijuana placed at the car trunk the
following day at Camp Karingal. Kizaki was not with him at Cash and Carry on the night of June 27,
1994. There was no stainless jeep near the car on the same night. Carlos was released and was not
charged because Kimuras girlfriend, Sally, served as Carlos guarantor.
On the other hand, appellant Kizaki testified that on the date that the alleged crime was committed,
he was in the company of his friends, Mr. and Mrs. Takeyama, his co-appellant Kimura, and his driver
[33]
Boy and maid Joan at his house in Dian Street, Makati City; that appellant Kimura borrowed his car on
[34]
the night of June 27, 1994 to pick up Kimuras broken TV and bring it to the repair shop.
Appellant Kizakis alibi was corroborated by Rosario Quintia, his former housemaid, and his friend,
Akiyoshi Takeyama, who both testified that they were at Kizakis house on the night of June 27,
[35]
1994 from 7:00 to 10:00 in the evening and never saw Kizaki leave the house.
Appellant Kizaki was arrested on June 29, 1994, two days after the Cash and Carry incident, in the
Nippon Ichi Restaurant located at Mabini, Manila. He was having dinner with Lt. Col. Rodolfo Tan,
Masami Y. Nishino, Anita Takeyama and Akiyoshi Takeyama. These witnesses executed a joint
[36]
affidavit and testified that while they were about to leave the restaurant, a man got near Kizaki and
asked for his passport whom they thought was from the Immigration. Later, they learned that Kizaki was
[37]
brought to Camp Karingal.
On June 27, 1997, the trial court rendered the herein assailed judgment, the dispositive portion of
which reads:

157
IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused Akira Kizaki and Tomohisa
Kimura GUILTY beyond reasonable doubt for violation of Section 4 of Republic Act 6425, as amended by
Republic Act 7659, and the Court hereby sentences them to suffer, taking into consideration the absence
of mitigating or aggravating circumstances, the amount of marijuana seized from the accused which
weigh 40,768 grams, the penalty of RECLUSION PERPETUA and to pay a fine of P500,000.00 each.
The Bureau of Immigration and Deportation is hereby ordered to deport Akira Kizaki and Tomohisa
Kimura without further proceedings after the service of their sentence.
Let the marijuana, the subject matter of this case be immediately forwarded to the Dangerous Drugs
Board for proper disposition.
SO ORDERED.

[38]

In convicting appellants, the trial court made the following findings:

The settled jurisprudence is that alibi is inherently a weak defense. Like the defense of alibi, denial by the
accused of the offense charged against him is also inherently a weak defense. It is also the settled
jurisprudence that the defense of alibi and denial cannot prosper over the positive identification of the
accused by the prosecution witnesses. For alibi to prosper, the accused must show that it was
impossible for him to have been at the scene of the commission of the crime at the time of its
commission.
Akira testified that on the evening of June 27, 1994, he was in his house located at Dian Street corner
Ampil Street, Makati City, Metro Manila, which is a walking distance to Cash and Carry Supermarket, the
scene of the offense. It was not therefore impossible for accused Akira Kizaki to have been present at
the scene of the crime at the time of its commission.
Accused Kimura testified that on the evening of June 27, 1994, he was with his co-accused Kizaki at the
Cash and Carry Supermarket but for another purpose, i.e., to meet Rey Plantilla who was borrowing
money from him. In fine accused Kimura merely denied the offense charged against him, which is weak
defense.
Both accused, Kizaki and Kimura, were positively identified by prosecution witnesses SPO4 Baldomino,
SPO1 Cabatu, Maj. Anso and PO3 Cadoy as the persons whom they arrested for drug trafficking in a
buy-bust operation at the Cash and Carry Supermarket on June 27, 1994.
Finally, although the evidence show that there is a doubt in the illegality of the arrest of accused Kimura
by Major Dayco, the jurisprudence is that the illegality of warrantless arrest cannot deprive the state of its
[39]
right to convict the guilty when all the facts on record point to their culpability.
Hence, this appeal before us. Appellants assert the following:
I
THE COURT A QUO GRAVELY ERRED IN DISREGARDING ACCUSED-APPELLANTS DEFENSE.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSEDAPPELLANTS HAD BEEN PROVEN BEYOND REASONABLE DOUBT.

158
Appellants claim that although the defense of alibi and denial are weak, it is still the duty of the
prosecution to prove the guilt of the accused beyond reasonable doubt to support a judgment of
conviction; that the trial court mainly relied on the weakness of the defense rather than on the strength of
the evidence for the prosecution. They argue that appellant Kizakis claim that he was not at the Cash
and Carry Supermarket on the night of June 27, 1994 was corroborated by three independent witnesses
including appellant Kimura who testified that he was not with appellant Kizaki at Cash and Carry
Supermarket on the said night.
Appellants further question how the trial court could have been certain that the marijuana presented
in court are the same articles confiscated from the appellants when the arresting officers did not place
identifying marks on the confiscated items.
Appellant Kizaki further contends that he was arrested two days after the alleged buy-bust operation
without a valid warrant of arrest. He points out that although the trial court expressed doubts as to the
legality of his arrest, it nevertheless convicted him of the crime charged, which is in violation of the
Constitution. Kizaki argues that he could not have been caught in flagrante delicto to justify the
warrantless arrest when he was arrested two days after the alleged Cash and Carry incident while he was
only having dinner with his friends at a restaurant.
In the appellees brief, the Solicitor General prays that the decision of the trial court finding appellants
guilty as charged be affirmed. He argues that appellants were positively identified by four prosecution
witnesses, all police officers, as among the three persons engaged in the transportation and delivery of
about 40,768 grams of marijuana on June 27, 1994 at the Cash and Carry Supermarket; that the police
operatives were able to seize the marijuana from the Sentra car they were using to transport the
marijuana; that the marijuana introduced and offered at the trial were positively identified by the arresting
officers as those seized from the car of the appellants; that the contention of appellant Kizaki that his
warrantless arrest two days after the alleged incident, was unlawful, is legally inconsequential in this case
considering that his conviction was not based on his arrest on June 29, 1994 but on his having
participated in the transport and delivery of marijuana on June 27, 1994; that appellant Kizaki never
questioned the validity of the warrantless arrest of his co-appellant Kimura on June 27, 1994, either
before the trial court or before this Court; thus, any challenge against the search and seizure of the
marijuana based on constitutional ground is deemed waived insofar as appellant Kizaki is concerned.
We will first resolve the issue on the alleged warrantless arrest of appellant Kizaki.
Appellant Kizaki assails the legality of his warrantless arrest. Indeed, SPO1 Delfin, one of those who
arrested appellant Kizaki at the Nippon Ichi restaurant, admitted that they did not have a warrant of arrest
when his group arrested Kizaki on the night of June 29, 1994. Rule 113, Section 5 of the Revised Rules
of Criminal Procedure provides that a peace officer or a private person may, without a warrant, arrest a
person only under the following circumstances:
(a)

When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

(b)

When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c)

When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.

The alleged crime happened on June 27, 1994 and appellant Kizaki was arrested on June 29,
1994 or two days after the subject incident. At the time appellant Kizaki was arrested, he was at a
restaurant having dinner with a group of friends, thus, he was not committing or attempting to commit a
crime. Neither was he an escaped prisoner whose arrest could be effected even without a warrant. It

159
bears stressing that none of the arresting officers of appellant Kizaki was present on the night of June 27
where appellant Kizaki allegedly sold and transported marijuana and escaped, thus the arresting officers
had no personal knowledge of facts or circumstances that appellant Kizaki committed the crime. None of
the exceptions enumerated above was present to justify appellant Kizakis warrantless arrest.
However, notwithstanding the unjustified warrantless arrest of appellant Kizaki, the records show that
[40]
he did not raise such question before he pleaded to the offense charged. Neither did he move to quash
[41]
the information on that ground before the trial court. He thus waived objection to the illegality of his
[42]
[43]
arrest. Moreover, appellant Kizakis application for bail which was denied by the trial court likewise
constitutes a waiver of his right to question whatever irregularities and defects which attended his
[44]
arrest.
Nevertheless, we find the other claims of appellants meritorious.
In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is
a sine qua non for conviction. The dangerous drug is the verycorpus delicti of the crime of violation of the
[45]
Dangerous Drugs Act.
[46]

In People vs. Casimiro, we acquitted appellant for failure of the prosecution to establish the
identity of the prohibited drug which constitutes the corpus delictiand held:
In People vs. Mapa, the accused-appellant was granted an acquittal after the prosecution failed to clarify
whether the specimen submitted to the NBI for laboratory examination was the same one allegedly taken
from the accused. In People vs. Dismuke, this Court ruled that the failure to prove that the specimen of
marijuana examined by the forensic chemist was that seized from the accused was fatal to the
prosecutions case. In People vs. Laxa, the policemen composing the buy-bust team failed to mark the
confiscated marijuana immediately after the alleged apprehension of the accused-appellant. One
policeman admitted that he marked the seized items only after seeing them for the first time in the police
headquarters. It was held:
This deviation from the standard procedure in the anti-narcotics operations produces doubts as to the
origins of the marijuana. Were the allegedly confiscated from the scene of the crime the same ones
which the investigator marked in the police headquarters? This question gives rise to surmises and
speculations, and cannot prove beyond reasonable doubt the guilt of accused-appellant.
In this case, the prosecution failed to prove the crucial first link in the chain of custody. The prosecution
witnesses PO2 Supa, SPO2 Madlon and PO3 Piggangay admitted they did not write their initials on the
brick of marijuana immediately after allegedly seizing from accused-appellant outside the grocery store
but only did so in their headquarters. The narcotics field test, which initially identified the seized item as
marijuana, was likewise not conducted at the scene of the crime, but only at the narcotics office. There is
thus reasonable doubt as to whether the item allegedly seized from accused-appellant is the same brick
of marijuana marked by the policemen in their headquarters and given by them to the crime laboratory for
examination.
After examining the evidence for the prosecution, and tested in the light of the Casimiro case, we find
that the prosecution failed to establish the identity of the marijuana allegedly seized from appellants
Kimura and Kizaki. Extant in the records were the admissions made by the police operatives of their
failure to place any markings on the seized marijuana immediately after they had allegedly apprehended
appellants, thus failing to prove that the marijuana presented in court was the very same marijuana
seized from appellants. Maj. Anso, head of the police operatives, testified on cross-examination as
follows:
ATTY. BALICUD:
With respect to the packages which you identified yesterday, before you showed that to
your investigation section, did you make any markings thereat?
WITNESS:

160
None, sir.
ATTY. BALICUD:
Did any of your men place any markings at least to identify that that is the drugs
confiscated by you at the Cash and Carry?
WITNESS:
What I know your honor, is that the investigation section is the one who will mark the
evidence.
...
COURT:
You mean to say when you have already surrender(sic) the shabu(sic) to the investigation
section that was the time when the investigator mark them?
WITNESS:
It is already their duty to mark them, your honor.
...
ATTY. BALICUD:
And did you see if any of those men in the investigation section did the corresponding
markings?
WITNESS:
I did not already see sir.

[47]

The testimony of Maj. Anso was confirmed by SPO4 Baldovino, Jr. when the latter testified on crossexamination as follows:
ATTY. SENSON:
Q. When the packages contained in Exhibits B, C and D were recovered at the car, did
you not make any markings on them, is that correct?
WITNESS:
A.

That is true, sir.

[48]

SPO4 Baldovino, Jr. further clarified on his re-direct examination why no markings were made, thus:
FISCAL MANABAT:
Q. Why is it that no markings were made on these marijuana packages?
...
WITNESS:
We did not put markings there because after we confiscated those packages, there was a press
conference conducted and after that we submitted it to PCCL or Philippine Crime
[49]
Laboratory, sir.
The failure to establish the chain of custody of the evidence is further shown by the testimony of
SPO1 Badua, the person assigned to bring the alleged seized marijuana to the PNP Crime Laboratory.
His testimony is as follows:
PROS. MANABAT:

161
Do you recall your activities on that day, June 29, 1994?
WITNESS:
I was ordered to bring the marijuana to the Crime Laboratory.
PROS. MANABAT:
Who ordered you to bring the marijuana to the Crime Laboratory?
WITNESS:
Superintendent Eduardo Cario, sir.
PROS. MANABAT:
Where did this marijuana come from, if you know?
WITNESS:
In our office confiscated from Japanese nationals.
PROS. MANABAT:
Do you know the name of the Japanese nationals you are referring to?
WITNESS;
I do not know, sir.
PROS. MANABAT:
Can you describe this marijuana which you said you were required to bring to the PNP
Crime Laboratory?
WITNESS:
They are contained in sacks, sir.
COURT:
How many sacks?
WITNESS:
Three (3), sir.
PROS. MANABAT:
What kind of sacks were these, can you recall?
WITNESS:
Rice sacks.
...
PROS. MANABAT:
Now, if you see this marijuana you said you were required to bring to the PNP Crime
Laboratory which you described as being contained in three (3) sacks, will you be able to
identify these three (3) sacks of marijuana.
WITNESS:
Yes, sir.
PROS. MANABAT:

162
Now, I am showing to you SPO1 Badua, there are three (3) sacks (sic) here already
deposited in Court, please examine these three (3) sacks carefully and tell us the relation
of these three sacks to that marijuana contained in sacks which you said you were required
to bring to PNP Crime Laboratory.
WITNESS:
These are the three sacks I brought.
PROS. MANABAT:
...
Now, you said that this marijuana was contained in three sacks, three rice sacks, will you
please examine the sacks and tell us if these are the same sacks which you brought to the
PNP Crime Laboratory?
WITNESS:
Yes, sir, these are the same sacks I brought.
COURT:
What made you so sure that these are the same sacks that you brought from your office to
the Crime Laboratory?
WITNESS:
Because of the markings A, B, C.
COURT:
Who affixed those markings?
WITNESS:
The investigator, sir.
COURT:
Did you see the investigator affixed those markings?
WITNESS:
Yes, sir.
COURT:
Who was the investigator?
WITNESSS:
SPO1 Delfin, sir.
PROS. MANABAT:
Now, what proof do you have that you actually brought these three sacks of marijuana
which you identified to the PNP Crime Laboratory?
WITNESS:
There is a request for laboratory examination.
PROS. MANABAT:
Who prepared this request for laboratory examination of the marijuana?

163
WITNESS:
SPO1 Delfin.

[50]

And on cross-examination as follows:

ATTY. BALICUD:
Now, were you present when this request for laboratory examination was prepared?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Who specifically typed the request?
WITNESS:
SPO1 Delfin, sir.
ATTY. BALICUD:
And this was made on June 28, 1994?
WITNESS:
Yes, sir.
...
ATTY. BALICUD:
And then about what time on June 28 was it prepared?
WITNESS:
Morning, sir.
ATTY. BALICUD:
But then this request was received already by the Crime Laboratory on June 29, 1994,
where were the three sacks deposited from June 28 up to the time you picked it up on
June 29 to be brought to the Crime Laboratory?
WITNESS:
It was deposited inside our supply room.
ATTY. BALICUD:
Why did you not deposit or deliver it immediately to the Crime Laboratory?
WITNESS:
We were still preparing the necessary papers.
ATTY. BALICUD:
What papers were still being prepared?
WITNESS:
Request for laboratory, medical, drug dependency.
...

164
ATTY. BALICUD:
Now, when the request for laboratory examination was made, did you already see the
contents inside the sack?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Why did you open the sacks?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Who opened the sacks?
WITNESS:
The investigator.
ATTY. BALICUD:
So that they were placed in three sacks?
WITNESS:
Yes, sir.
ATTY. BALICUD:
And you opened each and every sack?
WITNESS:
Yes, sir.
ATTY. BALICUD:
You brought the same to the Crime Laboratory?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Were there markings in the 3 sacks when the same were brought to the PNP Crime
Laboratory?
WITNESS:
Yes, sir. A, B, C.
ATTY. BALICUD:
So that one sack is marked A, the other sack is B and the other is marked C.
WITNESS:
Yes, sir.
ATTY. BALICUD:

165
How about the contents of these three sacks, were they also marked when you brought the
same to the PNP Crime Laboratory?
WITNESS:
Yes, sir, but it was marked at the Crime Laboratory already.
ATTY. BALICUD:
So, it is clear that when the alleged marijuana was brought to the PNP Crime Laboratory,
there was no marking yet?
WITNESS:
Yes, sir.

[51]

While SPO1 Baduas testimony showed that it was investigator SPO1 Delfin who made the markings
A, B, C on the three sacks containing the marijuana which he brought to the laboratory, nowhere in his
testimony did he say that such markings were made on the night the appellants were arrested, i.e., on
June 27, 1994. Investigator Delfin did not initial said markings nor did he testify affirming his markings.
Moreover, although the three sacks of alleged marijuana were marked as A, B, C, the contents of
these three sacks however had no markings when they were kept inside the supply room on June 28
since as Badua intimated, the contents of these three sacks were only marked when he brought the same
to the PNP Crime Laboratory on June 29, 1994.
The records of the case do not show that the police operatives complied with the procedure in the
custody of seized prohibited and regulated drugs as embodied in the Dangerous Drugs Board Regulation
[52]
No. 3 Series of 1979 amending Board Regulation No. 7 Series of 1974, i.e., any apprehending team
having initial custody and control of said drugs and/or paraphernalia, should immediately after seizure or
confiscation, have the same physically inventoried and photographed in the presence of the accused, if
there be any, and/or his representative, who shall be required to sign the copies of the inventory and be
given a copy thereof. In this case, there was no inventory made in the crime scene despite the fact that
Maj. Anso testified that he saw eighteen packages neatly wrapped in a newspaper but the inventory was
made already in the headquarters. SPO1 Badua testified that the marijuana confiscated from appellant
Kimura was contained in three sacks.
Consequently, the failure of the NARCOM operatives to place markings on the alleged seized
marijuana coupled with their failure to observe the procedure in the seizure and taking custody of said
drug seriously bring to question the existence of the seized prohibited drug. It is not positively and
convincingly clear that what was submitted for laboratory examination and presented in court was actually
recovered from the appellants.
Evidently, the prosecution has not proven the indispensable element of corpus delicti of the crime
which failure produces a grevious doubt as to the guilt of the appellants. In criminal cases, proof beyond
reasonable doubt is required to establish the guilt of the accused. Similarly, in establishing the corpus
delicti, thatunwavering exactitude is necessary. Every fact necessary to constitute the crime must be
[53]
established by proof beyond reasonable doubt.
Although the defense raised by appellants Kimura and Kizaki were denial and alibi, respectively,
which are inherently weak, we have repeatedly declared that the conviction of the accused must rest not
[54]
on the weakness of the defense but on the strength of the prosecution. The denial of appellant Kimura
that he was caught in the Cash and Carry Supermarket delivering marijuana on the night of June 27,
[55]
1994 may be weak but the evidence for the prosecution is clearly even weaker. InPeople vs. Laxa, we
acquitted the appellant for failure of the prosecution to establish the identity of the prohibited drug which
constitutes the corpus delicti, an essential requirement in a drug related case. In the present case, the
prosecution also failed to indubitably show the identity of the marijuana which mere allegedly seized from
appellants.
The alibi of appellant Kizaki that he was in his house on the same night assumes weight and
significance considering that the scenario depicted by the prosecution on the alleged escape of appellant

166
Kizaki at the Cash and Carry left much to speculations and surmises. The prosecution tried to show that
appellant Kizaki who was on board the stainless jeep was able to escape even if the police operatives
[56]
were only about five meters away from the jeep which was heading to the entrance of the Cash and
Carry along South Superhighway. It is quite difficult for us to accept its veracity considering that despite
the short distance of the operatives from the jeep when it started to speed off, the operatives who were all
[57]
armed with service revolvers chased on foot the stainless jeep and did not even fire any warning shot
to stop the driver and appellant Kizaki nor did they fire a shot at the tire of the jeep to immobilize it. The
alibi of Kizaki found corroboration from his friend Akiyoshi Takeyama and appellant Kizakis former
housemaid Rosaria Quintia that he was in his house and never left it on the night of the alleged delivery
or transport of marijuana in Cash and Carry Supermarket. In fact, co-appellant Kimura testified that
appellant Kizaki was not one of his companions in going to Cash and carry Supermarket on June 27,
[58]
1994. Moreover, in the request for laboratory examination dated June 28, 1994, signed by P/CI Jose F.
Dayco, Chief, Investigation Section, NMDU, NARCOM, the suspects named therein were only Koichi
[59]
Kishi and Tomohisa Kimura. Hence, the constitutional presumption of innocence has not been
overcome by the prosecution.
In fine, for failure of the prosecution to establish the guilt of both appellants beyond reasonable
doubt, they must perforce be exonerated from criminal liability.
WHEREFORE, the decision of the trial court in Criminal Case No. 94-5606 is
hereby REVERSED and appellants Tomohisa Kimura and Akira Kizaki, are herebyACQUITTED on
ground of reasonable doubt. They are ordered immediately released from prison, unless they are being
detained for some other lawful cause. The Director of Prisons is DIRECTED to inform this Court of the
action taken hereon within five (5) days from receipt hereof.
Let the PNP Director be furnished a copy of herein decision for the proper information and guidance
of his police operatives. The marijuana is hereby ordered confiscated in favor of the government for its
proper disposition under the law.
Costs de oficio.
SO ORDERED.
Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

[ G.R. No. 21049, December 22, 1923 ]

THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ISAAC PEREZ,
DEFENDANT AND APPELLANT.
DECISION
MALCOLM, J.:
Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that
municipality, happening to meet on the morning of April 1, 1922, in the presidencia of Pilar, they became
engaged in a discussion regarding the administration of Governor-General Wood, which resulted in Perez
shouting a number of times: "The Filipinos, like myself, must use bolos for cutting off Wood's head for
having recommended a bad thing for the Filipinos, for he has killed our independence." Charged in the
Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code having to do with
contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has
appealed the case to this court. The question presented for decision is, What crime, if any, did the
accused commit?
A logical point of departure is the information presented in this case. It reads in translation as follows:

167
"That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the
said accused, Isaac Perez, while holding a discussion with several persons on political matters, did
criminally, unlawfully and wilfully and with knowledge that Honorable Leonard Wood was the GovernorGeneral of the Philippine Islands and in the discharge of his functions as such authority, insult by word,
without his presence, said Governor-General, uttering in a loud voice and in the presence of many
persons, and in a public place, the following phrases: 'Asin an manga filipinos na caparejo co,
maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang recomendacion sa pag
raot can Filipinas,' which in English, is as follows: 'And the Filipinos, like myself, must use bolos for cutting
off Wood's head for having recommended a bad thing for the Philippines.'
"Contrary to article 256 of the Penal Code."
At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on
behalf of the defense. According to the first witness for the Government, Juan Lumbao, the municipal
president of Pilar, what Perez said on the occasion in question was this: "The Filipinos, like myself, should
get a bolo and cut off the head of Governor-General Wood, because he has recommended a bad
administration in these Islands and has not made a good recommendation; on the contrary, he has
assassinated the independence of the Philippines and for this reason, we have not obtained
independence and the head of that Governor-General must be cut off." Higinio J. Angustia, justice of the
peace of Pilar, in a written statement, and Gregorio Cresencio, another witness for the prosecution,
corroborated the testimony of the first witness. Cresencio understood that Perez invited the Filipinos
including himself to get their bolos and cut off the head of Governor-General Wood and throw it into, the
sea.
The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922,
in which the accused participated. But they endeavored to explain that the discussion was between Perez
and one Severo Madrid, the latter maintaining that the fault was due to the Nacionalista Party, while
Perez argued that the Governor-General was to blame. The accused testified that the discussion was
held in a peaceful manner, and that what he wished to say was that the Governor-General should be
removed and substituted by another. On the witness stand, he stated that his words were the following:
"We are but blaming the Nacionalista Party which is in power but do not take into account that above the
representatives there is Governor-General Wood who controls everything, and I told him that the day on
which the Democratas may kill that Governor-General, then we, the Filipinos, will install the government
we like whether you Democratas want to pay or not to pay taxes."
The trial Judge found as a fact, and we think with abundant reason, that it had been proved beyond a
reasonable doubt that the accused made use of the language stated in the beginning of this decision and
set out in the information. The question of fact thus settled, the question of law recurs as to the crime of
which the accused should be convicted.
It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having
been infringed and the trial Judge so found in his decision. The first error assigned by counsel for the
appellant is addressed to this conclusion of the lower court and is to the effect that article 256 of the
Penal Code is no longer in force.
[1]

In the case of United States vs. Helbig ([1920], R. G. No. 14705 ), the accused was charged with having
uttered the following language: "To hell with the President of the United States and his proclamation!" Mr.
Helbig was prosecuted under article 256, and though the case was eventually sent back to the court of

168
origin for a new trial, the appellate court by majority vote held as a question of law that article 256 is still in
force.
In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with having published
an article reflecting on the Philippine Senate and its members in violation of article 256 of the Penal Code.
In this court, Mr. Perfecto was acquitted by unanimous vote, with three members of the court holding that
article 256 was abrogated completely by the change from Spanish to American sovereignty over the
Philippines, and with six members holding that the Libel Law had the effect of repealing so much of article
256 as relates to written defamation, abuse, or insult, and that under the information and the facts, the
defendant was neither guilty of a violation of article 256 of the Penal Code nor of the Libel Law. In the
course of the main opinion in the Perfecto case, is found this significant sentence: "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."
It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow
with as good grace as we can muster, that until otherwise decided by higher authority, so much of article
256 of the Penal Code as does not relate to ministers of the Crown or to writings coming under the Libel
Law, exists and must be enforced. To which proposition, can properly be appended a corollary, namely:
Seditious words, speeches, or libels, constitute a violation of Act No. 292, the Treason and Sedition Law,
and to this extent, both the Penal Code and the Libel Law are modified.
Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it
is our opinion that the law infringed in this instance is not this article but rather a portion of the Treason
and Sedition Law. In other words, as will later appear, we think that the words of the accused did not so
much tend to defame, abuse, or insult, a person in authority, as they did to raise a disturbance in the
community.
In criminal law, there are a variety of offenses which are not directed primarily against individuals, but
rather against the existence of the State, the authority of the Government, or the general public peace.
The offenses created and defined in Act No. 292 are distinctly of this character. Among them is sedition,
which is the raising of commotions or disturbances in the State. It is a revolt against legitimate authority.
Though the ultimate object of sedition is a violation of the public peace or at least such a course of
measures as evidently engenders it, yet it does not aim at direct and open violence against the laws, or
the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974; U. S. vs. Abad [1902], 1 Phil., 437;
People vs. Cabrera [1922], 43 Phil., 64.)
It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to
abridge the freedom of speech and the right of the people peaceably to assemble and petition the
Government for redress of grievances. Criticism is permitted to penetriate even to the foundations of
Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is
within the range of liberty of speech, unless the intention and effect be seditious. But when the intention
and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of
assembly and petition must yield to punitive measures designed to maintain the prestige of constituted
authority, the supremacy of the constitution and the laws, and the existence of the State. (III Wharton's
Criminal Law, pp. 2127 et seq.; U. S. vs. Apurado [1907], 7 Phil., 422; Peoplevs. Perfecto, supra.)
Here, the person maligned by the accused is the Chief Executive of the Philippine Islands. His official
position, like the Presidency of the United States and other high offices, under a democratic form of
government, instead of affording immunity from promiscuous comment, seems rather to invite abusive
attacks. But in this instance, the attack on the Governor-General passes the furthest bounds of free
speech and common decency. More than a figure of speech was intended. There is a seditious tendency

169
in the words used, which could easily produce disaffection among the people and a state of feeling
incompatible with a disposition to remain loyal to the Government and obedient to the laws.
The Governor-General is an executive official appointed by the President of the United States by and with
the advice and consent of the Senate of the United States, and holds his office at the pleasure of the
President. The Organic Act vests supreme executive power in the Governor-General to be exercised in
accordance with law. The Governor-General is the representative of executive civil authority in the
Philippines and of the sovereign power. A seditious attack on the Governor-General is an attack on the
rights of the Filipino people and on American sovereignty. (Concepcion vs. Paredes [1921], 42 Phil., 599;
U. S. vs. Dorr [1903], 2 Phil., 332.)
Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have
been placed on the statute books exactly to meet such a situation. This section reads as follows:
"Every person who shall utter seditious words or speeches, or who shall write, publish or circulate
scurrilous libels against the Government of the United States or against the Government of the Philippine
Islands, or who shall print, write, publish, utter or make any statement, or speech, or do any act which
tends to disturb or obstruct any lawful officer in executing his office or in performing his duty, or which
tends to instigate others to cabal or meet together for unlawful purposes, or which suggests or incites
rebellious conspiracies or which tends to stir up the people against the lawful authorities, or which tends
to disturb the peace of the community or the safety or order of the Government, or who shall knowingly
conceal such evil practices from the constituted authorities, shall be punished by a fine not exceeding two
thousand dollars United States currency or by imprisonment not exceeding two years, or both, in the
discretion of the court."
In the words of the law, Perez has uttered seditious words. He has made a statement and done an act
which tended to instigate others to cabal or meet together for unlawful purposes. He has made a
statement and done an act which suggested and incited rebellious conspiracies. He has made a
statement and done an act which tended to stir up the people against the lawful authorities. He has made
a statement and done an act which tended to disturb the peace of the community and the safety or order
of the Government. All of these various tendencies can be ascribed to the action of Perez and may be
characterized as penalized by section 8 of Act No. 292 as amended.
A judgment and sentence convicting the accused of a violation of section 8 of Act No. 292 as amended,
is, in effect, responsive to, and based upon, the offense with which the defendant is charged. The
designation of the crime by the fiscal is not conclusive. The crime of which the defendant stands charged
is that described by the facts stated in the information. In accordance with our settled rule, an accused
may be found guilty and convicted of a graver offense than that designated in the information, if such
graver offense is included or described in the body of the information, and is afterwards justified by the
proof presented during the trial. (Guevara's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal
Procedure, p. 9.)
The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law,
and will, we think, sufficiently punish the accused.
That we have given more attention to this case than it deserves, may be possible. Our course is justified
when it is recalled that only last year, Mr. Chief Justice Taft of the United States Supreme Court, in
speaking of an outrageous libel on the Governor of Porto Rico, observed: "A reading of the two articles

170
removes the slightest doubt that they go far beyond the 'exuberant expressions of meridional speech,' to
use the expression of this court in a similar case in Gandia vs. Pettingill (222 U. S., 452, 456). Indeed
they are so excessive and outrageous in their character that they suggest the query whether their
superlative vilification has not overleapt itself and become unconsciously humorous." (Balzac vs. Porto
Rico [1922], 258 U. S., 298.) While our own sense of humor is not entirely blunted, we nevertheless
entertain the conviction that the courts should be the first to stamp out the embers of insurrection. The
fugitive flame of disloyalty, lighted by an irresponsible individual, must be dealt with firmly before it
endangers the general public peace.
The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused
of a violation of section 8 of Act No. 292 as amended. With the modification thus indicated, judgment is
affirmed, it being understood that, in accordance with the sentence of the lower court, the defendant and
appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. So ordered.
Street, Ostrand, Johns, and Romualdez, JJ., concur.

[ G.R. No. 190582, April 08, 2010 ]

ANG LADLAD LGBT PARTY REPRESENTED HEREIN BY ITS CHAIR, DANTON REMOTO,
PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing
order.
Justice Robert A. Jackson
[1]
West Virginia State Board of Education v. Barnette
One unavoidable consequence of everyone having the freedom to choose is that others may make
different choices - choices we would not make for ourselves, choices we may disapprove of, even choices
that may shock or offend or anger us. However, choices are not to be legally prohibited merely because
they are different, and the right to disagree and debate about important questions of public policy is a
core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and
respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically
opposed is an insurmountable goal. Yet herein lies the paradox - philosophical justifications about what is
moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes,
however, that practical solutions are preferable to ideological stalemates; accommodation is better than
intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live
together, if not harmoniously, then, at least, civilly.
Factual Background

171

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of
[2]
the Commission on Elections (COMELEC) dated November 11, 2009 (the First Assailed Resolution)
[3]
and December 16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the
Assailed Resolutions). The case has its roots in the COMELEC's refusal to accredit Ang Ladlad as a
[4]
party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.
Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for accreditation was denied on the ground that
the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
[5]
Petition for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and underrepresented sector that is particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied
with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
[6]
Commission on Elections. Ang Ladlad laid out its national membership base consisting of individual
[7]
members and organizational supporters, and outlined its platform of governance.
On November 11, 2009, after admitting the petitioner's evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual
and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their
sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person's capacity for profound emotional, affectional and sexual attraction to, and
intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one
gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change the natural use
into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned
in their lust one toward another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of
those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do
mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

172
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition's par. 6F:
`Consensual partnerships or relationships by gays and lesbians who are already of age'. It is further
indicated in par. 24 of the Petition which waves for the record: `In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence,
pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to
be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as `Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregardsdecency or morality x x x
It also collides with Article 1306 of the Civil Code: `The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary
to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that
`Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or
public policy' are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes `Immoral doctrines, obscene publications and exhibitions and indecent shows' as follows:
Art. 201.Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of
prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment
and fine, shall be imposed upon:
1.Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing
such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies,
lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise
for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated
or failed to comply with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment
that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency

173
of the government, ours too is the State's avowed duty under Section 13, Article II of the Constitution to
[8]
protect our youth from moral and spiritual degradation.
[9]
When Ang Ladlad sought reconsideration, three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while
three commissioners voted to deny Ang Ladlad's Motion for Reconsideration (Commissioners Nicodemo
T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and
speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlad's expressed
sexual orientationsper se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as
a whole, to become members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race.
But that is not the intention of the framers of the law. The party-list system is not a tool to advocate
tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system
is a tool for the realization of aspirations of marginalized individuals whose interests are also the
nation's - only that their interests have not been brought to the attention of the nation because of their
under representation. Until the time comes whenLadlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its application for accreditation
under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x
Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right,
and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or
legal equality of homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society's understanding, tolerance, and acceptance of LGBT's is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or
female protected by the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals

174

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is
there any attempt to any particular religious group's moral rules on Ladlad. Rather, what are being
adopted as moral parameters and precepts are generally accepted public morals. They are possibly
religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim
and Christian upbringing, such that some moral precepts espoused by said religions have sipped
[sic] into society and these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or
proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal
provisions. This is clear from its Petition's paragraph 6F: "Consensual partnerships or relationships by
gays and lesbians who are already of age' It is further indicated in par. 24 of the Petition which waves for
the record: `In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000.
Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x
[10]
x which shocks, defies or disregards decency or morality x x x." These are all unlawful.
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions
and direct the COMELEC to grant Ang Ladlad's application for accreditation. Ang Ladlad also sought the
issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously
announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
[11]
COMELEC not later than 12:00 noon of January 11, 2010. Instead of filing a Comment, however, the
OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to
[12]
Comment. Somewhat surprisingly, the OSG later filed a Comment in support of petitioner's
[13]
application. Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it
[14]
to file its own comment. The COMELEC, through its Law Department, filed its Comment on February 2,
[15]
2010.
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January
12, 2010, effective immediately and continuing until further orders from this Court, directing the
[16]
COMELEC to cease and desist from implementing the Assailed Resolutions.
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
[17]
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention. The CHR opined that the
denial of Ang Ladlad'spetition on moral grounds violated the standards and principles of the Constitution,
the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political
Rights (ICCPR). On January 19, 2010, we granted the CHR's motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene
[19]
on February 2, 2010.

[18]

which motion was granted

175
The Parties' Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also
claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations of the Philippines'
international obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad's petition and argued that the COMELEC erred in denying
petitioner's application for registration since there was no basis for COMELEC's allegations of immorality.
It also opined that LGBTs have their own special interests and concerns which should have been
recognized by the COMELEC as a separate classification. However, insofar as the purported violations of
petitioner's freedom of speech, expression, and assembly were concerned, the OSG maintained that
there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also
argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution
and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national
existence contrary to actual verification reports by COMELEC's field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of
the Constitution and Republic Act No.
7941
The COMELEC denied Ang Ladlad's application for registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the
sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang
[20]
Bagong Bayani-OFW Labor Party v. Commission on Elections, "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the requirements of the Constitution and
RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it
had nationwide existence through its members and affiliate organizations. The COMELEC claims that
upon verification by its field personnel, it was shown that "save for a few isolated places in the country,
[21]
petitioner does not exist in almost all provinces in the country."

176
This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it
said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioner's
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner's alleged non-existence were already available to the COMELEC
prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a
belated afterthought, a change in respondent's theory, and a serious violation of petitioner's right to
procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad's initial
petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged
that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it
had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion
[22]
group. Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"

Abra Gay Association

Aklan Butterfly Brigade (ABB) - Aklan
Albay Gay Association
Arts Center of Cabanatuan City - Nueva Ecija
Boys Legion - Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Can't Live in the Closet, Inc. (CLIC) - Metro Manila
Cebu Pride - Cebu City
Circle of Friends
Dipolog Gay Association - Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) - Metro Manila
Gay Men's Support Group (GMSG) - Metro Manila
Gay United for Peace and Solidarity (GUPS) - Lanao del Norte
Iloilo City Gay Association - Iloilo City
Kabulig Writer's Group - Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA - Baguio City
Marikina Gay Association - Metro Manila
Metropolitan Community Church (MCC) - Metro Manila
Naga City Gay Association - Naga City
ONE BACARDI
Order of St. Aelred (OSAe) - Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. - Metro Manila
San Jose del Monte Gay Association - Bulacan
Sining Kayumanggi Royal Family - Rizal
Society of Transexual Women of the Philippines (STRAP) - Metro Manila
Soul Jive - Antipolo, Rizal

177

The Link - Davao City

Tayabas Gay Association - Quezon
Women's Bisexual Network - Metro Manila
[23]
Zamboanga Gay Association - Zamboanga City
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no
surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELEC's
findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang
Ladlad's principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELEC's moral objection and the belated allegation
of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not
qualified to register as a party-list organization under any of the requisites under RA 7941 or the
guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad's morality, or lack
thereof.
Religion as the Basis for Refusal to
Accept Ang Ladlad's Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for
[24]
is "government neutrality in religious matters." Clearly, "governmental reliance on religious justification
[25]
is inconsistent with this policy of neutrality." We thus find that it was grave violation of the nonestablishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead,
on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have
[26]
primarily secular effects. As we held in Estrada v. Escritor:
x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public
order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise,
if government relies upon religious beliefs in formulating public policies and morals, the resulting policies
and morals would require conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as expressed in criminal law
like concubinage, must have a secular purpose. That is, the government proscribes this conduct because

178
it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling influence on those
engaged in public deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus have religious opinions
and moral codes with a compelling influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.
Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must
have an articulable and discernible secular purpose and justification to pass scrutiny of the religion
clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in
society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests
but at the same time strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling state
[27]
interests.
Public Morals as a Ground to
Deny Ang Ladlad's Petition for
Registration
Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct
may be religion-based, it has long been transplanted into generally accepted public morals. The
COMELEC argues:
Petitioner's accreditation was denied not necessarily because their group consists of LGBTs but because
of the danger it poses to the people especially the youth. Once it is recognized by the government, a
sector which believes that there is nothing wrong in having sexual relations with individuals of the same
gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any
[28]
society without a set of moral precepts is in danger of losing its own existence.
We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind
this censure - religious beliefs, convictions about the preservation of marriage, family, and procreation,
even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall
that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these
[29]
"generally accepted public morals" have not been convincingly transplanted into the realm of law.
The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad.
Even the OSG agrees that "there should have been a finding by the COMELEC that the group's members
[30]
have committed or are committing immoral acts." The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more
than one gender, but mere attraction does not translate to immoral acts. There is a great divide between
thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would
have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not
[31]
the intendment of the law.

179

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection
is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner's
admission into the party-list system would be so harmful as to irreparably damage the moral fabric of
society. We, of course, do not suggest that the state is wholly without authority to regulate matters
concerning morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an
argument or another, without bothering to go through the rigors of legal reasoning and explanation. In
this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.
We also find the COMELEC's reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance,
[32]
a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It
hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket
invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang
Ladlad's registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest. Respondent's blanket
justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as
a class, not because of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be
denied equal protection of the laws," courts have never interpreted the provision as an absolute
prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar
[33]
persons." The equal protection clause guarantees that no person or class of persons shall be deprived
of the same protection of laws which is enjoyed by other persons or other classes in the same place and
[34]
in like circumstances.
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect
class, we will uphold the classification as long as it bears a rational relationship to some legitimate
[35]
[36]
government end. In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, we
declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have
followed the `rational basis' test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
[37]
Constitution."

180

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately
for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize
homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to
assume that public opinion is as the COMELEC describes it, the asserted state interest here - that is,
moral disapproval of an unpopular minority - is not a legitimate state interest that is sufficient to satisfy
rational basis review under the equal protection clause. The COMELEC's differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored
group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same
interest in participating in the party-list system on the same basis as other political parties similarly
situated. State intrusion in this case is equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same
basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELEC's act of differentiating LGBTs from heterosexuals
insofar as the party-list system is concerned does not imply that any other law distinguishing between
heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the
OSG's position that homosexuals are a class in themselves for the purposes of the equal protection
[38]
clause. We are not prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and that the COMELEC made "an
unwarranted and impermissible classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and attempt to persuade
[39]
society of the validity of its position through normal democratic means. It is in the public square that
deeply held convictions and differing opinions should be distilled and deliberated upon. As we held
[40]
in Estrada v. Escritor:
In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment
has access to the public square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle
in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized
into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it
specifies - including protection of religious freedom "not only for a minority, however small - not only for a

181
majority, however large - but for each of us" - the majority imposes upon itself a self-denying ordinance. It
promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the
populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better
reason than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this country.
It follows that both expressions concerning one's homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
[41]
homosexual conduct violates public morality does not justify criminalizing same-sex conduct. European
and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection provisions in foreign and international
[42]
texts. To the extent that there is much to learn from other jurisdictions that have reflected on the issues
we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally
binding on Philippine courts, may nevertheless have persuasive influence on the Court's analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing free
speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of
a particular expression of opinion, public institutions must show that their actions were caused by
"something more than a mere desire to avoid the discomfort and unpleasantness that always accompany
[43]
an unpopular viewpoint."
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its
vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a
political party may campaign for a change in the law or the constitutional structures of a state if it uses
legal and democratic means and the changes it proposes are consistent with democratic principles. The
ECHR has emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the
[44]
majority of the population. A political group should not be hindered solely because it seeks to publicly
debate controversial political issues in order to find solutions capable of satisfying everyone
[45]
concerned. Only if a political party incites violence or puts forward policies that are incompatible with
[46]
democracy does it fall outside the protection of the freedom of association guarantee.
We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the
same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express
that view. However, as far as this Court is concerned, our democracy precludes using the religious or
moral views of one part of the community to exclude from consideration the values of other members of

182
the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may
be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis
of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there
has been no restriction on their freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take
part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to
vote is a constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlad's petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its
members to fully and equally participate in public life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
[47]
imposed by law. x x x
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the partylist system, and - as advanced by the OSG itself - the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELEC's action, from publicly expressing its views as a political party and participating on an equal
basis in the political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner's fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise, international human
rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world
order. For individuals and groups struggling with inadequate structural and governmental support,
international human rights norms are particularly significant, and should be effectively enforced in
domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to

183
electoral participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is
not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR
Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to
[48]
include "sexual orientation." Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various international
[49]
agreements.
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2
and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs
and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct
of public affairs, the right to vote and to be elected and the right to have access to public service.
Whatever form of constitution or government is in force, the Covenant requires States to adopt such

184
legislative and other measures as may be necessary to ensure that citizens have an effective opportunity
to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent
of the people and in conformity with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political affiliation. No person
should suffer discrimination or disadvantage of any kind because of that person's candidacy. States
parties should indicate and explain the legislative provisions which exclude any group or category of
[50]
persons from elective office.
We stress, however, that although this Court stands willing to assume the responsibility of giving effect to
the Philippines' international law obligations, the blanket invocation of international law is not the panacea
for all social ills. We refer now to the petitioner's invocation of the Yogyakarta Principles (the Application
[51]
of International Human Rights Law In Relation to Sexual Orientation and Gender Identity), which
petitioner declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are
not reflective of the current state of international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of the International Court of
[52]
Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of
international law to ascertain their true status.
We also hasten to add that not everything that society - or a certain segment of society - wants or
demands is automatically a human right. This is not an arbitrary human intervention that may be added to
or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much
broader context of needs that identifies many social desires as rights in order to further claims that
international law obliges states to sanction these innovations. This has the effect of diluting real human
rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no
longer controversial.
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated
by various international law professors, are - at best - de lege ferenda - and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the
"soft law" nomenclature, i.e., international law is full of principles that promote international cooperation,
harmony, and respect for human rights, most of which amount to no more than well-meaning desires,
[53]
without the support of either State practice or opinio juris.
As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in
opinion. This Court's role is not to impose its own view of acceptable behavior. Rather, it is to apply the

185
Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge
that our democracy is resilient enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The
Commission on Elections is directed to GRANT petitioner's application for party-list accreditation.
SO ORDERED.
Puno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Bersamin, Villarama, Jr., Perez, and Mendoza, JJ.,
concur.
Corona, J., pls. see dissenting opinion.
Carpio Morales, Nachura, and Peralta, JJ., joins J. Abad's concurring opinion.
Brion, J., join dissent of J. Corona.
Abad, J., certify that J. Abad wrote a separate concurring opinion.

[ G.R. No. 81567, July 09, 1990 ]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL
AND RENATO VILLANUEVA MANOLITA O. UMIL, AND NICANOR P. DURAL, FELICITAS V. SESE,
PETITIONERS, VS. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, RESPONDENTS.
[G.R. NOS. 84581-82. JULY 9, 1990]
AMELIA ROQUE AND WILFREDO BUENAOBRA, PETITIONERS, VS. GEN. RENATO DE VILLA AND
GEN. RAMON MONTANO, RESPONDENTS.
[G.R. NOS. 84583-84. JULY 9, 1990]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO
AND RAMON CASIPLE DOMINGO T. ANONUEVO AND RAMON CASIPLE, PETITIONERS, VS. HON.
FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD,
T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, AND COMMANDING OFFICER, PC-INP
DETENTION CENTER, CAMP CRAME, QUEZON CITY, RESPONDENTS.
[G.R. NO. 83162. JULY 9, 1990]
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY
RIVERA VIRGILIO A. OCAYA, PETITIONER, VS. BRIG. GEN. ALEXANDER AGUIRRE, COL.
HERCULES CATALUNA, COL. NESTOR MARIANO, RESPONDENTS.
[G.R. NO. 85727. JULY 9, 1990]
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU,
PETITIONER, VS. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, RESPONDENTS.

186
[G.R. NO. 86332. JULY 9, 1990]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO ALFREDO
NAZARENO, PETITIONER, VS. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE
STATION, MUNTINGLUPA, METRO MANILA, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE,
P/SGT. LEVI SOLEDAD, AND P/SGT. MAURO AROJADO, RESPONDENTS.
DECISION
PER CURIAM:
These are eight (8) petitions for habeas corpus filed before the Court, which have been consolidated
because of the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering
the respective respondents to produce the bodies of the persons named therein and to explain why they
should not be set at liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas
corpus is not available to the petitioners as they have been legally arrestedand are detained by virtue
of valid informations filed in court against them.
The petitioners counter that their detention is unlawful as their arrests were
madewithout warrant and,
that no preliminary investigation was
first
conducted,
so
that
theinformations filed against them are null and void.
The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it
finds that the persons detained have not been illegally arrested nor arbitrarily deprived of
their constitutional right to liberty, and that the circumstances attending these cases do not warrant their
release on habeas corpus.
The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The
occasions or instances when such an arrest may be effected are clearlyspelled out in Section 5, Rule 113
of the Rules of Court, as amended, which provides:
"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;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7."
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the
Rules of Court, as amended, is justified when the person arrested is caught inflagranti delicto, viz., in the
act of committing an offense; or when an offense has just been committed and the person making the
arrest has personal knowledge of the facts indicating that the person arrested has committed it. The
rationale behind lawful arrests, without warrant, was stated by this Court in the case of People
[1]
vs. Kagui Malasugui thus,
"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his
crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the
most expert, and the most depraved of criminals, facilitating their escape in many instances."

187
The record of the instant cases would show that the persons in whose behalf thesepetitions
for habeas corpus have been filed, had freshly committed or were actually committing an offense, when
apprehended, so that their arrests without a warrant were clearly justified, and that they are,
further, detained by virtue of valid informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions is inorder.
I
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional
Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information
about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St.
Agnes Hospital in Roosevelt Avenue, QuezonCity. Upon verification, it was found that the wounded
person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of
the NPA liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day before,
or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification,
Rolando Dural was transferred to the Regional Medical Services of the CAPCOM, for security
reasons. While confined thereat, or on 4 February 1988, RolandoDural was positively identified by
eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at
the two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and
CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to theCaloocan City
Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an
information charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault
Upon Agents of Persons in Authority." The case was docketed therein as Criminal Case No. C-30112 and
no bail was recommended. On15 February 1988, the information was amended to include, as defendant,
Bernardo Itucal, Jr. who, at the filing of the original information, was still unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf
of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9
February 1988 and the respondents filed a Return of the Writ on 12 February 1988. Thereafter, the
parties were heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before
the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been
filed against them, and they were accordingly released. The petition for habeas corpus,
insofar as Umil and Villanueva are concerned, is now moot and academic and is accordingly dismissed,
since the writ of habeas corpus does not lie in favor of an accused in a criminal case who has been
[2]
released on bail.
As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two
(2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense
for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is
unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an
outlawed subversive organization. Subversion being a continuing offense, the arrest of
Rolando Dural without warrant is justified as it can be said that he was committing an offense when
arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes
or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against
the State and are in the nature ofcontinuing crimes. As stated by the Court in an earlier case:

188
"From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is,
therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy
or proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the
occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside
from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of
the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing
non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an
armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of
offenses which requires the determination by a judge of the existence of probable cause before the
issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the
absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt
acts of violence against government forces, or any other milder acts but equally in pursuance of the
rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that
involves the very survival of society and its government and duly constituted authorities. If killing and
other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of
the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing
their persons and detaining them while any of these contingencies continues cannot be less
[3]
justified. x x x"
The
record,
moreover,
shows
that
the
criminal
case
filed
against Rolando Dural andBernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below and
at theconclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty
of the charge and sentenced accordingly. Rolando Dural is now serving the sentence imposed upon him
by the trial court. Thus, the writ of habeas corpus is no longer available to him. For, as held in the early
[4]
case of U.S. vs. Wilson:
"In this case, whatever may be said about the manner of his arrest, the fact remains that the defendant
was actually in court in the custody of the law on March 29, when a complaint sufficient in form and
substance was read to him. To this he pleaded not guilty. The trial followed, in which, and in the
judgment of guilty pronounced by the court, we find no error. Whether, if there were irregularities in
bringing him personally before the court, he could have been released on a writ of habeas corpus or now
has a civil action for damages against the person who arrested him we need not inquire. It is enough to
say that such irregularities are not sufficient to set aside a valid judgment rendered upon a sufficient
complaint and after a trial free from error."
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and WilfredoBuenaobra,
without
warrant,
is
also
justified. When
apprehended
at
the
house
of RenatoConstantino in Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra admittedthat he
was an NPA courier and he had with him letters to Renato Constantino and other members of the rebel
group. Amelia Roque, upon the other hand, was a member of the National United Front Commission, in
charge of finance, and admitted ownership of subversive documents found in the house of her sister
in Caloocan City. She was also in possession of ammunition and a fragmentation grenade for which she
had no permit or authority to possess.

189
The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos yIbanes, a
member of the NPA, who had surrendered to the military authorities, told military agents about the
operations of the Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro
Manila. He identified some of his former comrades as "KaMong", a staff member of the Communications
and Transportation Bureau; "Ka Nelia", astaff member in charge of finance; "Ka Miller", an NPA courier
from Sorsogon and Lopez,Quezon; "Ka Ted", and "Ka Totoy. He also pointed to a certain house
occupied byRenato Constantino located in the Villaluz Compound, Molave St., Marikina Heights,Marikina,
Metro Manila, which is used as a safehouse of the National United Front Commission (NUFC) of the
CPP-NPA.
In view of these revelations, the Constantino house was placed under military surveillance and on 12
August 1988, pursuant to a search warrant issued by JudgeEutropio Migrino of the Regional Trial Court
of Pasig, a search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined
team of the Criminal Investigation Service, National Capital District (CIS-NCD) and the Constabulary
Security Group (CSG). In the course of the search, the following articles were found and taken
under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constantino could not produce any permit or authority to possess the
firearms, ammunition, radio and other communications equipment. Hence, he was brought to the CIS
Headquarters for investigation. When questioned, he refused to give a written statement, although
he admitted that he was a staff member of the executive committee of the NUFC and a ranking member
of the International Department of the Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), WilfredoBuenaobra arrived
at the house of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the
military agents that he is a regular member of the CPP/NPA and that he went to the place to deliver
letters to "Ka Mong", referring to RenatoConstantino, and other members of the rebel group. On further
questioning, he also admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro,
Lopez, Quezon. Among the items taken from him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.
Also found in Buenaobra's possession was a piece of paper containing a written but jumbled
telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo
St., Caloocan City. Acting on the lead provided as to the whereabouts ofAmelia Roque, the military
agents went to the given address the next day (13 August 1988). They arrived at the place at
about 11:00 o'clock in the morning. After identifying themselves as military agents and after seeking
permission to search the place, which was granted, the military agents conducted a search in the
presence of the occupants of the house and the barangay captain of the place, one Jesus De Olba.

190
The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers,
journals, vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well
as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live
ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other
occupants of the house were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for
investigation. Amelia Roque admitted to the investigators that the voluminous documents belonged to
her and that the other occupants of the house had no knowledge of them. As a result, the said other
occupants of the house were released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after
which an
information charging
her
with
violation
of
PD
1866
was
filed
with
theRegional Trial Court of Caloocan City. The case is docketed therein as Criminal Case No. C1196. Another information for violation of the Anti-Subversion Act was filed against Amelia Roque before
the Metropolitan Trial Court of Caloocan City, which is docketed therein as Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed against WilfredoBuenaobra before
the Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case
No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of
Amelia Roque and Wilfredo Buenaobra. At
the
hearing
of
the
case,
however, WilfredoBuenaobra manifested
his
desire
to
stay
in
the
PC-INP
Stockade
at Camp Crame,Quezon City. Accordingly, the petition for habeas corpus filed on his behalf is now moot
and academic. Only the petition of Amelia Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are officers and/or members of
the National United Front Commission (NUFC) of the CPP was notcontroverted or traversed by said
[5]
petitioners. The contention must be deemed admitted. As officers and/or members of the NUFC-CPP,
their arrest, without warrant, was justified for the same reasons earlier stated vis-avis Rolando Dural. The arrest without warrant ofRoque was additionally justified as she was, at the time
of apprehension, in possession of ammunitions without license to possess them.
III
In G.R.
Nos. 84583-84 (Anonuevo vs.
Ramos),
the
arrest
of Domingo Anonuevo andRamon Casiple, without warrant, is also justified under the rules. Both are
admittedly members of the standing committee of the NUFC and, when apprehended in the house
ofRenato Constantino, they had a bag containing subversive materials, and both carried firearms and
ammunition for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening of13 August 1988,
Domingo
T. Anonuevo and
Ramon Casiple arrived
at
the
house
ofRenato Constantino at Marikina Heights, Marikina, which was still under surveillance by military
agents. The military agents noticed bulging objects on their waist lines. When frisked, the agents found
them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or
carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC
Headquarters for investigation. Foundin their possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65 containing ten
(10) live ammunition of same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN: A18868 last digit tampered with one (1) magazine containing five
(5) live ammunition of same caliber.

191
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casipleas "Ka Totoy" of
the CPP, by their comrades who had previously surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary evidence were forwarded
to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which
Domingo Anonuevo and Ramon Casiple were charged with violation of Presidential Decree No. 1866
before the Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein as Criminal
Cases Nos. 74386 and 74387, respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of
Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiplewere unlawfully
arrested without a warrant and that the informations filed against them arenull and void for having been
filed without prior hearing and preliminary investigation. On30 August 1988, the Court issued the writ of
habeas corpus, and after the respondents had filed a Return of the Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was
no previous warrant of arrest, is without merit. The record shows that Domingo Anonuevo and
Ramon Casiple were carrying unlicensed firearms and ammunition in their person when they were
apprehended.
There is also no merit in the contention that the informations filed against them are null and void
for want of a preliminary investigation. The filing of an information, without a preliminary investigation
having been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as
amended, reads:
"Sec. 7. When accused lawfully arrested without a warrant. - When a person is lawfully arrested without
a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed
by the offended party, peace officer or fiscal without a preliminary investigation having
been first conducted, on the basis of the affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may ask for a preliminary
investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions
of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of
non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen
(15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first conducted, the
accused may within five (5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in
this Rule."
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended. In theinformations filed against them,
the prosecutor made identical certifications, as follows:
"This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of the 1985
Rules on Criminal Procedure, that no preliminary investigation was conducted because the accused has
not made and signed a waiver of the provisions of Art. 125 of the Revised Penal Code, as amended; that
based on the evidence presented, there is reasonable ground to believe that the crime has been
committed, and that the accused is probably guilty thereof."
Nor did petitioners ask for a preliminary investigation after the informations had been filed against
them in court. Petitioners cannot now claim that they have been deprived of their constitutional right to
due process.
IV

192
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under
the Rules, since she had with her unlicensed ammunition when she was arrested. The record of this
case shows that on 12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP
Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court
of Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green
Heights,Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA. In
the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents
and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a result,
Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When
Vicky Ocaya could not produce any permit or authorization to possess the ammunition, an
information charging her with violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro
Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand,
was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and
Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied
the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without
a warrant is justified. No preliminary investigation was conducted because she was arrested
without a warrant and she refused to waive the provisions of Article 125 of the Revised Penal Code,
pursuant to Sec. 7, Rule 112 of the Rules of Court, asamended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and AmeliaRoque claim that the
firearms, ammunition and subversive documents alleged to have been found in their possession when
they were arrested, did not belong to them, but were "planted" by the military agents to justify their illegal
arrest.
The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the
other hand, no evil motive or ill-will on the part of the arresting officers that would cause the said arresting
officers in these cases to accuse the petitioners falsely, has been shown. Besides, the arresting officers
in these cases do not appear to be seekers of glory and bounty hunters for, as counsel for the
petitioners Anonuevo andCasiple say, "there is absolutely nothing in the evidence submitted during the
inquest that petitioners are on the AFP Order of Battle with a reward of P150,000.00 each on their
[6]
heads. " On the other hand, as pointed out by the Solicitor General, the arrest of the petitioners is
not a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of
NPA safehouses pointed to by no less than former comrades of the petitioners in the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
"x x x. To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and Casiple,
was the lawful search and seizure conducted by the military at the residence
of Renato Constantino at Villaluz Compound,Molave St., Marikina Heights, Marikina, Metro Manila. The
raid at Constantino's residence, was not a witch hunting or fishing expedition on the part of the military. It
was a result of an in-depth military surveillance coupled with the leads provided by former members of the
underground subversive organizations. That raid produced positive results. To date, nobody has
disputed the fact that the residence of Constantino when raided yielded communication equipment,
firearms and ammunitions, as well as subversive documents.
The military agents working on the information provided by Constantino that other members of his group
were coming to his place, reasonably conducted a 'stake-out' operation whereby some members of the
raiding team were left behind the place. True enough, barely two hours after the raid

193
and Constantino's arrest, petitionerBuenaobra arrived at Constantino's residence. He acted suspiciously
and when frisked and searched by the military authorities, found in his person were letters. They are no
ordinary letters, as even a cursory reading would show. Not only that, Buenaobra admitted that he is a
NPA courier and was there to deliver the letters toConstantino.
Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra,
petitioners Anonuevoand Casiple arrived at Constantino's place. Would it be unreasonable for the
military agents to believe that petitioners Anonuevo and Casiple are among those expected to
visit Constantino's residence considering thatConstantino's information was true, in that Buenaobra did
come to that place? Was it unreasonable under the circumstances, on the part of the military agents, not
to frisk and search anyone who should visit the residence ofConstantino,
such as petitioners Anonuevo and Casiple? Must this Honorable Court yield
to Anonuevo andCasiple's flimsy and bare assertion that they went to visit Constantino, who was to leave
for Saudi Arabia on the day they were arrested thereat?
As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest without warrant
considering that it was Buenobra who provided the leads on her identity? It cannot be denied
that Buenaobra had connection with Roque. Because the former has the phone number of the
latter. Why the necessity of jumblingRoque's telephone number as written on a piece of paper taken
from Buenaobra's possession? PetitionersRoque and Buenaobra have not offered any plausible reason
so far.
In all the above incidents, respondents maintain that they acted reasonably, under the time, place and
circumstances of the events in question, especially considering that at the time of petitioners' arrest,
incriminatory evidence, i.e., firearms, ammunitions and/or subversive documents were found in their
possession.
Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp, but were
arrested in such time, place and circumstances, from which one can reasonably conclude that they were
up to a sinister plot, involving utmost secrecy and comprehensive conspiracy."
VI
In G.R.
No.
85727 (Espiritu vs.
Lim),
the
release
on
habeas
corpus
of
the
petitionerDeogracias Espiritu, who is detained by virtue of an Information for Violation of Article 142 of the
Revised Penal Code (Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not
warranted.
The record of the case shows that the said petitioner is the General Secretary of
thePinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association of drivers
and operators of public service vehicles in the Philippines, organized for their mutual aid and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was
sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria
Paz Lalic who told him that a group of persons wanted to hire his jeepney. When he went down to talk to
them, he was immediately put under arrest. When he asked for the warrant of arrest, the men, headed by
Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type jeepney. He demanded that his
sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his request and
hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at Blumentritt,Manila where he
was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before
the respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was
thereafter brought to the General Assignment Section, Investigation Division of the Western Police District

194
under Police Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his
[7]
liberty.
The respondents claim however, that the detention of the petitioner is justified in view of the
Information filed against him before the Regional Trial Court of Manila, docketed therein as Criminal Case
No. 88-683-85, charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a judicial warrant
of arrest since petitioner when arrested had in fact just committed an offense in that in the afternoon of 22
November 1988, during a press conference at the National Press Club,
"Deogracias Espiritu through tri-media was heard urguing all drivers and operators to go on nationwide
strike on November 23, 1988, to force the government to give in to their demands to lower the prices of
spare parts, commodities, water and the immediate release from detention of the president of the
PISTON (Pinag-isangSamahan ng Tsuper Operators Nationwide). Further, we
heard Deogracias Espiritu taking the place of PISTON president Medardo Roda and also announced the
[8]
formation of the Alliance Drivers Association to go on nationwide strike on November 23, 1988."
Policemen waited for petitioner outside the National Press Club in order to investigate him, but he
[9]
gave the lawmen the slip. He was next seen at about 5:00 o'clock that afternoon at a gathering of
drivers and symphatizers at the corner of Magsaysay Blvd. andValencia Street, Sta. Mesa, Manila where
he was heard to say:
"Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila,
at hindi tayo titigil hanggang hindibinibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng s
pare
[10]
parts, bilihin at ang pagpapalaya saating pinuno na si Ka Roda hanggang sa magkagulo na." (emphasi
s supplied)
The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning
and brought to police headquarters after which an Information for violation of Art. 142 of the Revised
[11]
Penal Code was filed against him before the Regional Trial Court of Manila.
Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule
113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid information filed
with the competent court, he may not be released on habeas corpus. He may, however be released
upon posting bail as recommended. However, we find the amount of the recommended bail (P60,000.00)
excessive and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the
submission of Narciso Nazareno that he was illegally arrested and is unlawfully detained. The record of
this case shows that at about 8:30 o'clock in the morning of 14 December1988, one Romulo Bunye II was
killed by a group of men near the corner of T. Molina andMendiola Streets
in Alabang, Muntinglupa, Metro Manila. One of
the
suspects
in
the
killing
was Ramil Regala who was arrested
by
the
police
on 28
December 1988. Upon
questioning, Regala pointed to Narciso Nazareno as one of his companions in the killing of the
said Romulo Bunye II. In
view
thereof,
the
police
officers,
without
warrant,
picked
upNarciso Nazareno and brought him to the police headquarters for questioning. Obviously, the evidence
of
petitioner's
guilt
is
strong
because
on 3
January
1989, an
informationcharging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing
of RomuloBunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed
therein as Criminal Case No. 731.

195
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the
trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his coaccused, Manuel Laureaga, was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf
ofNarciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to
the Presiding Judge of the Regional Trial Court of Binan, Laguna, Branch 24, ordering said court to hear
the case on 30 January 1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial
Court of Binan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the
said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him
with the Regional Trial Court of Makati, Metro Manila which had taken cognizance of said case and had,
in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of
the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Binan, Laguna are based upon the
facts and the law. Consequently, we will not disturb the same. Evidently, the arrest
of Nazareno was effected by the police without warrant pursuant to Sec. 5 (b), Rule 113, Rules of Court
after he was positively implicated by his co-accused RamilRegala in the killing of Romulo Bunye II; and
[12]
after investigation by the police authorities. As held in People vs. Ancheta:
"The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a
necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be
perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably
sufficient grounds to believe the existence of an act having the characteristics of a crime and that the
same grounds exist to believe that the person sought to be detained participated therein."
VIII
It is to be noted that, in all the petitions here considered, criminal charges have been filed in the
proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or judge, and that the court or judge had
jurisdiction to issue the process or make the order, or if such person is charged before any court, the writ
of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in
providing that:
"Sec. 4. When writ is not allowed or discharge authorized. - If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue
of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in thePhilippines or of a person suffering imprisonment
under lawful judgment." (emphasis supplied)
At this point, we refer to petitioners' plea for the Court to re-examine and, thereafter, abandon its
[13]
pronouncement in Ilagan vs. Enrile, that a writ of habeas corpus is no longer available after an
information is filed against the person detained and a warrant of arrest or an order of commitment is
[14]
issued by the court where said information has been filed. The petitioners claim that the said ruling,
which was handed down during the past dictatorial regime to enforce and strengthen said regime, has no
place under the present democratic dispensation and collides with the basic, fundamental, and
constitutional rights of the people. Petitioners point out that the said doctrine makes possible the arrest

196
and detention of innocent persons despite lack of evidence against them, and, most often, it is only after a
petition for habeas corpus is filed before the court that the military authorities file the criminal information
in the courts of law to be able to hide behind the protective mantle of the said doctrine. This, petitioners
assert, stands as an obstacle to the freedom and liberty of the people and permits lawless and arbitrary
State action.
We find, however, no compelling reason to abandon the said doctrine. It is based upon express
provision of the Rules of Court and the exigencies served by the law. The fears expressed by the
petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal, with a view to
its abandonment, of the Ilagan case doctrine is not the answer. The answer and the better practice would
be, not to limit the function of habeas corpus to a mere inquiry as to whether or not the court which issued
the process, judgment or order of commitment or before whom the detained person is charged, had
jurisdiction or not to issue the process, judgment or order or to take cognizance of the case, but rather, as
the
Court
itself
states
in Morales,
Jr.
[15]
vs. Enrile, "in all petitions forhabeas corpus the court must inquire into every phase and aspect of petiti
oner's detentionfrom the moment petitioner was taken into custody up to the moment the court passesupon the merits of
the petition;" and "only after such a scrutiny can the court satisfy itselfthat the due process clause of our C
onstitution has in fact been satisfied." This is exactly what the Court has done in the petitions at bar. This
is what should henceforth be done in all future cases of habeas corpus. In short, all cases involving
deprivation of individual liberty should be promptly brought to the courts for their immediate scrutiny and
disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727(Espiritu vs.
Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to
P10,000.00. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, GrioAquino, Medialdea,and Regalado, JJ., concur.
Cruz, J., See separate opinion.
Feliciano, J., See separate concurring statement.
Sarmiento, J., I dissent. See dissenting opinion.
Cortes, J., I join Mr. Justice Feliciano in his separate concurring statement.

UMIL VS. RAMOS (GR 81567, SEPT. 8, 1990) Digest

FACTS:
-The are separate motions filed by 8 different petitions seeking reconsideration of the Court's
decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with
the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs.
Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00
to P10,000.00. No costs.

197

- These petitions were consolidated because of the similarity of the issues being raised, praying
for the issuance of the writ of habeas corpus, ordering the respective respondents to produce the
bodies of the persons named therein and explain why they should not be set off to liberty without
delay.
- Respondents assert that the privilege of habeas corpus is not available to petitioners as they
have been legally arrested and detained by virtue of valid information file in court against them.
- Petitioners are members of NPA

ISSUE:
WON the petitioners are illegally arrested and detained.

HELD:
Arrest and detention is valid.

RATIO:
There can be no dispute that, as a general rule, no peace officer or person has the power or
authority to arrest anyone without a warrant of arrest, except in those cases express authorized
by law. 6 The law expressly allowing arrests without warrant is found in Section 5, Rule 113 of the
Rules of Court which states the grounds upon which a valid arrest, without warrant, can be
conducted.
In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said
Rule 113, which read:
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 he arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrest has committed it;
The record of the cases would show that the persons in whose behalf these petitions for
habeas corpus have been filed has freshly committed, or were actually committing an offense
when apprehended so that their arrest without warrant is clearly justified , and that they are
detained by virtue of valid information filed against them.

198

[ G.R. No. 132922, April 21, 1998 ]

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. AND GMA
NETWORK, INC., PETITIONERS, VS. THE COMMISSION ON ELECTIONS, RESPONDENT.
DECISION
MENDOZA, J.:
[1]
In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998, we upheld the validity of
11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political ads,
except to the Commission on Elections under 90, of B.P. No. 881, the Omnibus Election Code, with
respect to print media, and 92, with respect to broadcast media. In the present case, we consider the
validity of 92 of B.P. Blg. No. 881 against claims that the requirement that radio and television time be
given free takes property without due process of law; that it violates the eminent domain clause of the
Constitution which provides for the payment of just compensation; that it denies broadcast media the
equal protection of the laws; and that, in any event, it violates the terms of the franchise of petitioner GMA
Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization of
lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and
registered voters. The other petitioner, GMA Network, Inc., operates radio and television broadcasting
stations throughout the Philippines under a franchise granted by Congress.
Petitioners challenge the validity of 92 on the ground (1) that it takes property without due process
of law and without just compensation; (2) that it denies radio and television broadcast companies the
equal protection of the laws; and (3) that it is in excess of the power given to the COMELEC to supervise
or regulate the operation of media of communication or information during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an interest
as lawyers of radio and television broadcasting companies and as citizens, taxpayers, and registered
voters.
[2]
In those cases in which citizens were authorized to sue, this Court upheld their standing in view of
the transcendental importance of the constitutional question raised which justified the granting of relief.
In contrast, in the case at bar, as will presently be shown, petitioners substantive claim is without merit.
To the extent, therefore, that a partys standing is determined by the substantive merit of his case or a
preliminary estimate thereof, petitioner TELEBAP must be held to be without standing. Indeed, a citizen
will be allowed to raise a constitutional question only when he can show that he has personally 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
[3]
action. Members of petitioner have not shown that they have suffered harm as a result of the operation
of 92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case does
not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be precisely in upholding
its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by
[4]
Congress of its taxing or spending power. A party suing as a taxpayer must specifically show that he
has a sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned statute.

199
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown that the
party suing has some substantial relation to the third party, or that the third party cannot assert his
constitutional right, or that the right of the third party will be diluted unless the party in court is allowed to
espouse the third partys constitutional claim. None of these circumstances is here present. The mere fact
that TELEBAP is composed of lawyers in the broadcast industry does not entitle them to bring this suit in
their name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates radio and
television broadcast stations in the Philippines affected by the enforcement of 92 of B.P. Blg. 881
requiring radio and television broadcast companies to provide free air time to the COMELEC for the use
of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time
in connection with the 1992 presidential election and the 1995 senatorial election and that it stands to
suffer even more should it be required to do so again this year. Petitioners allegation that it will suffer
losses again because it is required to provide free air time is sufficient to give it standing to question the
[5]
validity of 92.
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioners
Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90 and 92 of
B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the opportunity of
candidates in an election in regard to the use of mass media for political campaigns. These statutory
provisions state in relevant parts:
R.A. No. 6646
SEC. 11. Prohibited Forms of Election Propaganda. - In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
....
(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Section 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period.
B.P. Blg. 881, (Omnibus Election Code)
SEC. 90. Comelec space. - The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as Comelec Space wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the area
in which the newspaper is circulated. (Sec. 45, 1978 EC).
SEC. 92. Comelec time. - The Commission shall procure radio and television time to be known as
Comelec Time which shall be allocated equally and impartially among the candidates within the area of
coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and

200
television stations are hereby amended so as to provide radio or television time, free of charge, during the
period of the campaign. (Sec. 46, 1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for allocation to the
candidates. It will be noted that while 90 of B.P. Blg. 881 requires the COMELEC to procure print space
which, as we have held, should be paid for, 92 states that air time shall be procured by the COMELEC
free of charge.
[6]
Petitioners contend that 92 of BP Blg. 881 violates the due process clause and the eminent
[7]
domain provision of the Constitution by taking air time from radio and television broadcasting stations
without payment of just compensation. Petitioners claim that the primary source of revenue of the radio
and television stations is the sale of air time to advertisers and that to require these stations to provide
free air time is to authorize a taking which is not a de minimis temporary limitation or restraint upon the
use of private property. According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in
providing free air time of one (1) hour every morning from Mondays to Fridays and one (1) hour on
Tuesdays and Thursdays from 7:00 to 8:00 p.m. (prime time) and, in this years elections, it stands to lose
P58,980,850.00 in view of COMELECs requirement that radio and television stations provide at least 30
[8]
minutes of prime time daily for the COMELEC Time.
Petitioners argument is without merit. All broadcasting, whether by radio or by television stations, is
licensed by the government. Airwave frequencies have to be allocated as there are more individuals who
[9]
want to broadcast than there are frequencies to assign. A franchise is thus a privilege subject, among
other things, to amendment by Congress in accordance with the constitutional provision that any such
franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when
[10]
the common good so requires.
The idea that broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:
SEC. 49. Regulation of election propaganda through mass media. - (a) The franchises of all radio
broadcasting and television stations are hereby amended so as to require each such station to furnish
free of charge, upon request of the Commission [on Elections], during the period of sixty days before the
election not more than fifteen minutes of prime time once a week which shall be known as Comelec
Time and which shall be used exclusively by the Commission to disseminate vital election information.
Said Comelec Time shall be considered as part of the public service time said stations are required to
furnish the Government for the dissemination of public information and education under their respective
franchises or permits.
This provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296),
which provided:
SEC. 46. COMELEC Time. - The Commission [on Elections] shall procure radio and television time to be
known as COMELEC Time which shall be allocated equally and impartially among the candidates within
the area of coverage of said radio and television stations. For this purpose, the franchises of all radio
broadcasting and television stations are hereby amended so as to require such stations to furnish the
Commission radio or television time, free of charge, during the period of the campaign, at least once but
not oftener than every other day.
Substantially the same provision is now embodied in 92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Time have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had not been
thought of as taking property without just compensation. Art. XII, 11 of the Constitution authorizes the

201
amendment of franchises for the common good. What better measure can be conceived for the
common good than one for free air time for the benefit not only of candidates but even more of the public,
particularly the voters, so that they will be fully informed of the issues in an election? [I]t is the right of the
[11]
viewers and listeners, not the right of the broadcasters, which is paramount.
Nor indeed can there be any constitutional objection to the requirement that broadcast stations give
free air time. Even in the United States, there are responsible scholars who believe that government
controls on broadcast media can constitutionally be instituted to ensure diversity of views and attention to
public affairs to further the system of free expression. For this purpose, broadcast stations may be
[12]
required to give free air time to candidates in an election. Thus, Professor Cass R. Sunstein of the
University of Chicago Law School, in urging reforms in regulations affecting the broadcast industry,
writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important, government
should ensure free media time for candidates. Almost all European nations make such provision; the
United States does not. Perhaps government should pay for such time on its own. Perhaps broadcasters
should have to offer it as a condition for receiving a license. Perhaps a commitment to provide free time
would count in favor of the grant of a license in the first instance. Steps of this sort would simultaneously
promote attention to public affairs and greater diversity of view. They would also help overcome the
distorting effects of soundbites and the corrosive financial pressures faced by candidates in seeking
[13]
time on the media.
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are merely
given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance by the grantee of some form of public
[14]
service. Thus, in De Villata v. Stanley, a regulation requiring interisland vessels licensed to engage in
the interisland trade to carry mail and, for this purpose, to give advance notice to postal authorities of date
and hour of sailings of vessels and of changes of sailing hours to enable them to tender mail for
transportation at the last practicable hour prior to the vessels departure, was held to be a reasonable
condition for the state grant of license. Although the question of compensation for the carriage of mail was
not in issue, the Court strongly implied that such service could be without compensation, as in fact under
[15]
Spanish sovereignty the mail was carried free.
[16]
In Philippine Long Distance Telephone Company v. NTC, the Court ordered the PLDT to allow the
interconnection of its domestic telephone system with the international gateway facility of Eastern
Telecom. The Court cited (1) the provisions of the legislative franchise allowing such interconnection; (2)
the absence of any physical, technical, or economic basis for restricting the linking up of two separate
telephone systems; and (3) the possibility of increase in the volume of international traffic and more
efficient service, at more moderate cost, as a result of interconnection.
[17]
Similarly, in the earlier case of PLDT v. NTC, it was held:
Such regulation of the use and ownership of telecommunications systems is in the exercise of the plenary
police power of the State for the promotion of the general welfare. The 1987 Constitution recognizes the
existence of that power when it provides:
Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and operate economic enterprises, subject to the
duty of the State to promote distributive justice and to intervene when the common good so demands
(Article XII).

202
The interconnection which has been required of PLDT is a form of intervention with property rights
dictated by the objective of government to promote the rapid expansion of telecommunications services
in all areas of the Philippines, . . . to maximize the use of telecommunications facilities available, . . . in
recognition of the vital role of communications in nation building . . . and to ensure that all users of the
public telecommunications service have access to all other users of the service wherever they may be
within the Philippines at an acceptable standard of service and at reasonable cost (DOTC Circular No.
90-248). Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory
agency of the State, merely exercised its delegated authority to regulate the use of telecommunications
networks when it decreed interconnection.
In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
[18]
stations. It would be strange if it cannot even require the licensees to render public service by giving
free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of
television programs involves large expenditure and requires the use of equipment for which huge
investments have to be made. The dissent cites the claim of GMA Network that the grant of free air time
to the COMELEC for the duration of the 1998 campaign period would cost the company P52,380,000,
representing revenue it would otherwise earn if the air time were sold to advertisers, and the amount of
P6,600,850, representing the cost of producing a program for the COMELEC Time, or the total amount of
P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is finished product which, it is said, become the property of the
company, like oil produced from refining or similar natural resources after undergoing a process for their
production. But air time is not owned by broadcast companies. As held in Red Lion Broadcasting Co. v.
[19]
F.C.C., which upheld the right of a party personally attacked to reply, licenses to broadcast do not
confer ownership of designated frequencies, but only the temporary privilege of using them.
Consequently, a license permits broadcasting, but the licensee has no constitutional right to be the one
who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is
nothing in the First Amendment which prevents the Government from requiring a licensee to share his
frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those
views and voices which are representative of his community and which would otherwise, by necessity, be
[20]
barred from the airwaves. As radio and television broadcast stations do not own the airwaves, no
private property is taken by the requirement that they provide air time to the COMELEC.
Justice Panganibans dissent quotes from Tolentino on the Civil Code which says that the air lanes
themselves are not property because they cannot be appropriated for the benefit of any individual. (p.5)
That means neither the State nor the stations own the air lanes. Yet the dissent also says that The
franchise holders can recover their huge investments only by selling air time to advertisers. (p. 13) If air
lanes cannot be appropriated, how can they be used to produce air time which the franchise holders can
sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program
and it is for such items as sets and props, video tapes, miscellaneous (other rental, supplies,
transportation, etc.), and technical facilities (technical crew such as director and cameraman as well as
on air plugs). There is no basis for this claim. Expenses for these items will be for the account of the
candidates. COMELEC Resolution No. 2983, 6(d) specifically provides in this connection:
(d) Additional services such as tape-recording or video-taping of programs, the preparation of visual aids,
terms and condition thereof, and the consideration to be paid therefor may be arranged by the candidates

203
with the radio/television station concerned. However, no radio/television station shall make any
discrimination among candidates relative to charges, terms, practices or facilities for in connection with
the services rendered.
It is unfortunate that in the effort to show that there is taking of private property worth millions of
pesos, the unsubstantiated charge is made that by its decision the Court permits the grand larceny of
precious time, and allows itself to become the peoples unwitting oppressor. The charge is really
[21]
unfortunate. In Jackman v. Rosenbaum Co., Justice Holmes was so incensed by the resistance of
property owners to the erection of party walls that he was led to say in his original draft, a statute, which
embodies the communitys understanding of the reciprocal rights and duties of neighboring landowners,
does not need to invoke the petty larceny of the police power in its justification. Holmess brethren
corrected his taste, and Holmes had to amend the passage so that in the end it spoke only of invoking
[22]
the police power. Justice Holmes spoke of the petty larceny of the police power. Now we are being
told of the grand larceny [by means of the police power] of precious air time.
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA Network,
Inc. a franchise for the operation of radio and television broadcasting stations. They argue that although
5 of R.A. No. 7252 gives the government the power to temporarily use and operate the stations of
petitioner GMA Network or to authorize such use and operation, the exercise of this right must be
compensated.
The cited provision of R.A. No. 7252 states:
SEC. 5. Right of Government. - A special right is hereby reserved to the President of the Philippines, in
times of rebellion, public peril, calamity, emergency, disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the grantee, to temporarily suspend the operation of any
station in the interest of public safety, security and public welfare, or to authorize the temporary use and
operation thereof by any agency of the Government, upon due compensation to the grantee, for the use
of said stations during the period when they shall be so operated.
The basic flaw in petitioners argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc. This is not so. Under 92 of
B.P. Blg. 881, the COMELEC does not take over the operation of radio and television stations but only
the allocation of air time to the candidates for the purpose of ensuring, among other things, equal
[23]
opportunity, time, and the right to reply as mandated by the Constitution.
Indeed, it is wrong to claim an amendment of petitioners franchise for the reason that B.P. Blg. 881,
[24]
which is said to have amended R.A. No. 7252, actually antedated it. The provision of 92 of B.P. Blg.
881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, 4 of the latter statute
does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render adequate
public service time implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the
government to communicate with the people on matters of public interest. Thus, R.A. No. 7252 provides:
SEC. 4. Responsibility to the Public. - The grantee shall provide adequate public service time to enable
the Government, through the said broadcasting stations, to reach the population on important public
issues; provide at all times sound and balanced programming; promote public participation such as in
community programming;assist in the functions of public information and education; conform to the ethics
of honest enterprise; and not use its station for the broadcasting of obscene and indecent language,
speech, act or scene, or for the dissemination of deliberately false information or willful misrepresentation,

204
or to the detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable
acts. (Emphasis added)
It is noteworthy that 49 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should be considered as part of the public service time said stations
are required to furnish the Government for the dissemination of public information and education under
their respective franchises or permits. There is no reason to suppose that 92 of B.P. Blg. 881 considers
the COMELEC Time therein provided to be otherwise than as a public service which petitioner is required
to render under 4 of its charter (R.A. No. 7252). In sum, B.P. Blg. 881, 92 is not an invalid amendment
of petitioners franchise but the enforcement of a duty voluntarily assumed by petitioner in accepting a
public grant of privilege.
Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, 2 of which states:
SEC. 2. Grant of Comelec Time. - Every radio broadcasting and television station operating under
franchise shall grant the Commission, upon payment of just compensation, at least thirty (30) minutes of
prime time daily, to be known as Comelec Time, effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective March 27, 1998, for candidates for local elective
offices, until May 9, 1998. (Emphasis added)
This is because the amendment providing for the payment of just compensation is invalid, being in
contravention of 92 of B.P. Blg. 881 that radio and television time given during the period of the
campaign shall be free of charge. Indeed, Resolution No. 2983 originally provided that the time
allocated shall be free of charge, just as 92 requires such time to be given free of charge. The
amendment appears to be a reaction to petitioners claim in this case that the original provision was
unconstitutional because it allegedly authorized the taking of property without just compensation.
The Solicitor General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an administrative
agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since 2 of Resolution No.
2983-A is invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time and
[25]
that theoretically the COMELEC can demand all of the air time of such stations. Petitioners do not
claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television time. What they
claim is that because of the breadth of the statutory language, the provision in question is susceptible of
[26]
unbridled, arbitrary and oppressive exercise.
The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates within the area of coverage of a particular radio or television broadcaster so that it cannot,
for example, procure such time for candidates outside that area. At what time of the day and how much
time the COMELEC may procure will have to be determined by it in relation to the overall objective of
informing the public about the candidates, their qualifications and their programs of government. As
stated in Osmea v. COMELEC, the COMELEC Time provided for in 92, as well as the COMELEC
Space provided for in 90, is in lieu of paid ads which candidates are prohibited to have under 11(b) of
R.A. No. 6646. Accordingly, this objective must be kept in mind in determining the details of the
COMELEC Time as well as those of the COMELEC Space.

205
There would indeed be objection to the grant of power to the COMELEC if 92 were so detailed as to
leave no room for accommodation of the demands of radio and television programming. For were that the
case, there could be an intrusion into the editorial prerogatives of radio and television stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide free
air time. They contend that newspapers and magazines are not similarly required as, in fact, in Philippine
[27]
Press Institute v. COMELEC we upheld their right to the payment of just compensation for the print
space they may provide under 90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the
same treatment under the free speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum, the
government must, of necessity, allocate broadcast frequencies to those wishing to use them. There is no
[28]
similar justification for government allocation and regulation of the print media.
In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not do in the case of the print media. To
require the radio and television broadcast industry to provide free air time for the COMELEC Time is a fair
exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, [n]ecessarily . . . the freedom of television and radio broadcasting is
[29]
somewhat lesser in scope than the freedom accorded to newspaper and print media.
The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos.
Newspapers and current books are found only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular transportation. Even here, there are low income masses who
find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food
and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also becoming universal.
Their message may be simultaneously received by a national or regional audience of listeners including
the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials
broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or
offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and
immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate,
[30]
analyze, and reject the utterance.
Petitioners assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the law
has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No. 6646 (ban on paid
political ads) should be invalidated would pave the way for a return to the old regime where moneyed
candidates could monopolize media advertising to the disadvantage of candidates with less resources.
That is what Congress tried to reform in 1987 with the enactment of R.A. No. 6646. We are not free to set
aside the judgment of Congress, especially in light of the recent failure of interested parties to have the
law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the

206
States Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C,
4 of the Constitution does not include the power to prohibit. In the first place, what the COMELEC is
[31]
authorized to supervise or regulate by Art. IX-C, 4 of the Constitution, among other things, is the use
by media of information of their franchises or permits, while what Congress (not the COMELEC) prohibits
is the sale or donation of print space or air time for political ads. In other words, the object of supervision
or regulation is different from the object of the prohibition. It is another fallacy for petitioners to contend
that the power to regulate does not include the power to prohibit. This may have force if the object of the
power were the same.
In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the regulatory provision
in the statute. The other half is the mandate to the COMELEC to procure print space and air time for
allocation to candidates. As we said in Osmea v. COMELEC:
The term political ad ban, when used to describe 11(b) of R.A. No. 6646, is misleading, for even as
11(b) prohibits the sale or donation of print space and air time to political candidates, it mandates the
COMELEC to procure and itself allocate to the candidates space and time in the media. There is no
suppression of political ads but only a regulation of the time and manner of advertising.
....
. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise
freely in the mass media, the law provides for allocation, by the COMELEC of print space and air time to
give all candidates equal time and space for the purpose of ensuring free, orderly, honest, peaceful, and
credible elections.
With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their qualifications
and programs of government. More than merely depriving candidates of time for their ads, the failure of
broadcast stations to provide air time unless paid by the government would clearly deprive the people of
their right to know. Art. III, 7 of the Constitution provides that the right of the people to information on
matters of public concern shall be recognized, while Art. XII, 6 states that the use of property bears a
social function [and] the right to own, establish, and operate economic enterprises [is] subject to the duty
of the State to promote distributive justice and to intervene when the common good so demands.
To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to
it that the variety and vigor of public debate on issues in an election is maintained. For while broadcast
media are not mere common carriers but entities with free speech rights, they are also public trustees
charged with the duty of ensuring that the people have access to the diversity of views on political issues.
This right of the people is paramount to the autonomy of broadcast media. To affirm the validity of 92,
therefore, is likewise to uphold the peoples right to information on matters of public concern. The use of
property bears a social function and is subject to the states duty to intervene for the common good.
Broadcast media can find their just and highest reward in the fact that whatever altruistic service they may
render in connection with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez andQuisumbing,
JJ., concur.

207
Romero, Panganiban, and Purisima, JJ., dissent.
Vitug, J., has separate opinion.

[ G.R. No. 110088, February 01, 1995 ]

DR. MERLE A. ALONZO, PETITIONER, VS. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES,
JUDGE DAN VELASCO, AND DR. ANGELES VELASCO, RESPONDENTS.
DECISION
DAVIDE, JR., J.:
[1]
This petition for review on certiorari challenges the decision of the Court of Appeals in CA-G.R. CR No.
[2]
10504 and its resolution denying the motion for the reconsideration of the decision. The decision
affirmed in toto the judgment of the Regional Trial Court, Branch 11, Davao City, in Criminal Case No.
13698 convicting the petitioner of libel.
The antecedent facts are summarized by the Court of Appeals as follows:
"From 1984 to 1986, accused Dra. Merle A. Alonzo was the Field Operations Officer of the Philippine
Medical Care Commission (PMCC) for Region XI. On June 13, 1985, accused was directed by Executive
Officer of the PMCC, Rossi Castro, to conduct inspections of Medicare-accredited clinics and hospitals
(Exhibit 1). The directive was approved by the Chairman of PMCC, Dr. Pacifico Marcos, as Special Order
No. 73. Among the Medicare-accredited clinics inspected by accused were the Sto. Nio Medical Clinic in
Astorga, Sta. Cruz, Davao del Sur, and Our Lady of Fatima Medical Clinic in Guihing, Hagonoy, Davao
del Sur (Exhibits E, E-1, and F). The clinics were owned and managed by complainant Dra. Angeles
Velasco, married to Judge Dan Velasco of the MTC-Hagonoy, Davao del Sur. After the inspection,
accused submitted her report on her findings to Dr. Jesus Tamesis, PMCC Vice-Chairman. The report
reads as follows:
'Dr. Jesus V. Tamesis
Vice Chairman PMCC
S i r:
The folder of the Sto. Nino Medical Clinic and that of Our Lady of Fatima both owned and managed by
Dra. Angeles Fe [sic] Velasco is not accompanied by the standard SIR because of time pressure since I
inspected it at past four in the afternoon. My purpose was to invite the physicians in the area to the
forthcoming July 7 medical meeting. However, after checking the physical plant, I discovered that it was
too small for a 50 bed hospital. I therefore proceed[ed] to the actual inspection which revealed the
following:
GSIS
SSS
Non Medicare

14
1
--------

208

Total

15

Again almost all of the charts with IVF and parenterals were not noted in the nurses' progress notes as
either inserted, refused, deferred or consumed.
1. Marcial Emma # 699 admitted June 25, 1985.
2. Gelvero, Anita # 690 admitted June 27, 1985.
I therefore attach the written statement of the above 2 female patients. See attached brown paper in
Bisaya[n]. There were five other patients who had similar findings but they refused perhaps out of fear.
This is the third time I found Dra. Velasco to be practicing this kind of giving Doctors' order and should be
stopped thru the following:
1.
2.
3.
4.
5.

Demand all purchase receipts of IVF and drugs.

Require that she keep an inventory of all medicines use for medicare patients.
To modify her charting of medication sheet.
More intensive inspection especially after 6:00 p.m.
Monitor all filed claims whether IVF refused or not not [sic] inserted were later on claimed.

The couple is treatening [sic] me with libel according to the Davao del sur PHA grapevine and it puzzles
me how and why?
The other folder that of the Sto. Nio has the following violations:
1. Classified as Secondary by the MOH which should not be.
2. 7 charts are those who were not physically present on inspection.
3. The clinic is not manned by a physician at night.
In all, this particular clinic should be closely monitored because, aside from the above mentioned
violations, the husband is a judge arid it gives them a certain amount of "untouchability". In fact, they
make court suits their pasttime.
(SGD.) MERLE A. ALONZO, M.D.
FOO, Region XI
(Annex C, Exhibit B, Underscoring ours)
On the basis of said report and other documents, Executive Director Rossi Castro, on October 15, 1985,
filed a complaint with the PMCC against the Sto. Nio Medical Clinic for Misrepresentation by Extending
Confinement of Patients, Misrepresentation by Claiming for Non-Existing Patients, Breach of Warranty of
Accreditation (Exhibit B).
On January 6, 1986, complainant Dra. Angeles Velasco received summons from the PMCC, together with
attached complaint and annexes, which included the report of accused (Exhibit A). Thereupon, after
reading the papers, she went to see her husband, Judge Dan Velasco, at the latter's office at Hagonoy,
Davao del Sur, and showed him the same. Finding that the last portions of the report to be libelous,
complainant Judge Velasco and complainant Dra. Angeles Velasco went to see their lawyer Atty. David

209
Montaa at the latter's office in Quimpo Building, Rizal St., Davao City. Since Atty. David Montaa was
out, the complainants entrusted the summons and the complaint with annexes, contained in a folder with
Atty. Paquito Balasabas whose office was adjacent to that of Atty. Montaa, with the request that Atty.
Balasabas deliver the folder to Atty. Montaa. Atty. Balasabas examined the documents and read
[3]
them."
Dr. Velasco and her husband, Judge Dan Velasco, then filed a complaint for libel against the petitioner
with the Office of the City Fiscal of Davao City and, after preliminary investigation, Assistant City Fiscal
Raul Bendigo filed the corresponding information for libel against the petitioner with the Regional Trial
Court, Davao City, which docketed it as Criminal Case No. 13698.
After due trial, the trial court promulgated on 19 November 1990 its decision finding the petitioner "guilty
beyond reasonable doubt of two (2) crimes of libel, penalized under Article 355 of the Revised Penal
Code, as charged," and sentenced her "to pay a fine of P1,000.00 for each crime; pay Dr. Angeles Te[4]
Velasco and Judge Dan U. Velasco P5,000.00 each for moral damages; and to pay the costs."
The trial court found defamatory the statement in the last paragraph which read: "the husband is a judge
and it gives them certain amount of untouchability. In fact, they make court suits their pasttime." The trial
court said that this statement "conveys the meaning that Judge Velasco abuses his powers and authority
as a judge thus enabling him and his wife to violate the law with impunity and even make court suits their
pasttime [sic].'" Regarding the requirement of publication, it held that there was sufficient publication of
the petitioner's subject report when she sent it to Dr. Tamesis. Thus:
"In the instant case, although the letter was contained in a closed envelope, the accused sent it to Dr.
Jesus V. Tamesis, a person other than the complainants (Dr. Angeles Te Velasco and Judge Dan U.
Velasco), thus parting with its possession with the intention that it be read, as it was read, by Dr. Tamesis.
There was, therefore, sufficient publication."
The trial court rejected the petitioner's defense that her report was a privileged communication and that
she could not be held liable for libel because "[t]here is evidence on record that she begrudged and bore
the complainants ill-will for not extending to her a loan of P1,500.00 and for refusing to bear the vacation
expenses of her children at the Davao Insular Hotel, the most expensive hostelry in Davao City."
Unable to accept the judgment and insisting upon her innocence, the petitioner appealed from the
judgment to the Court of Appeals which docketed the case as CA-G.R. CR No. 10504.
In its decision of 29 January 1993 affirming the trial court's judgment, the Court of Appeals conceded that
the subject report of the petitioner was a "qualified privileged communication" under the first paragraph of
Article 354 of the Revised Penal Code but held that the privilege was lost because of proof of actual
malice.
"In the report, when appellant made the derogatory imputations, the same conveyed the clear meaning
that Judge Velasco, husband of Dra. Angeles Velasco, abuses his power and authority as judge, thus
enabling him and his wife to violate the law with impunity and even make court suits their pasttime. The
derogatory remarks were obviously made out of ill-will or revenge, in view of the rumored threat of libel
from the complainants according to the Davao del Sur PHA grapevine. Thus, malice in fact is present, as

210
there is intent to injure the good name of persons without justifiable motive, making the communication
actionable."
The petitioner's claim that her report was necessary as she was required to submit the same after
inspection and that "her intention was to convey the possible consequences she may suffer due to the
said investigation as well as any difficulties the Commissioner may encounter in pursuing legal action
against the erring clinics and its owners" was rejected by the trial court.
"There could be no question that the reporting of the irregularities was in pursuance to a legal duty, for
which appellant could not be held liable. But the report was not confined to such reporting called for by
duty; it included derogatory imputations against complainants which are absolutely without relevancy and
pertinency to the subject matter of the investigation and report as directed in Special Order 73. The report
even went to the extent of maligning the judge who had nothing to do with the operation of the clinic.
...
Any alleged difficulty that the Commission may encounter in the pursuit of its legal action against the
erring clinic, is purely conjectural and speculative; and if at all there be such difficulty, it is not appellant's
business to deal with but the Commission's exclusive affair."
Her motion for reconsideration having been denied, the petitioner filed the instant petition and in seeking
a reversal of the challenged decision, she claims that the Court of Appeals:
"I. X X X ERRED IN CONCLUDING THAT ON THE BASIS OF ITS FINDING, THERE WAS
PUBLICATION OF THE SUPPOSED DEROGATORY REMARKS.
II. X X X ERRED IN DEEMING THE REMARKS IN QUESTION TO BE DEROGATORY.
III. X X X MISAPPLIED THE LAW IN JUDGING THAT THE PRIVILEGED NATURE OF THE REPORT
HAS BEEN LOST BY PROOF OF ACTUAL MALICE; THE PUBLIC RESPONDENT'S FINDING OF
ACTUAL MALICE IS NOT SUPPORTED BY THE EVIDENCE."
Put more simply, the primordial issue raised in this petition is whether the questioned report of the
petitioner to Dr. Tamesis is libelous.
Libel is defined in Article 353 of the Revised Penal Code as follows:
"ART. 353. Definition of libel. -- A libel is a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act or omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is
dead."
For an imputation then to be libelous, the following requisites must concur:
"(a)
(b)

It must be defamatory;
It must be malicious;

211
(c)
(d)

It must be given publicity; and

[5]
the victim must be identifiable."

Any of the imputations covered by Article 353 is defamatory and, under the general rule laid down in
Article 354, every defamatory imputation is presumed to be malicious, even if it be true, if no good
intention and justifiable motive for making it is shown. There is malice when the author of the imputation is
prompted by personal ill-will or spite and speaks not in response to duty but merely to injure the
[6]
reputation of the person who claims to have been defamed. Truth then is not a defense, unless it is
shown that the matter charged as libelous was made with good motives and for justifiable ends. Article
361 of the Revised Penal Code provides, in part, as follows:
"ART. 361. Proof of truth. In every criminal prosecution for libel, the truth may be given in evidence to
the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published
with good motives and for justifiable ends, the defendant shall be acquitted."
However, malice is not presumed and must, therefore, be proved, under the following exceptions
provided for in Article 354, viz.:
"1. A private communication made by any person to another in the performance of any legal, moral or
social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative
or other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions."
The privileged character of these communications is not absolute, but merely qualified since they could
[7]
still be shown to be malicious by proof of actual malice or malice in fact. The burden of proof in this
[8]
regard is on the plaintiff or the prosecution.
Publication means "to make public; to make known to people in general; to bring before the
[9]
public." Specifically put, publication in the law of libel means the making known of the defamatory
matter, after it has been written, to some person other than the person of whom it is written. If the
[10]
statement is sent straight to a person of whom it is written there is no publication of it.
The reason for
this is that [a] communication of the defamatory matter to the person defamed cannot injure his reputation
though it may wound his self-esteem. A man's reputation is not the good opinion he has of himself, but
[11]
the estimation in which others hold him.
It is undisputed that the petitioner, as Field Operations Officer for Region XI of the PMCC, is a public
officer and that she submitted the questioned report after she had conducted the inspection of the two
clinics of Dr. Velasco pursuant to and by virtue of the directive of the Executive Officer, Atty. Rossi Castro,
which was duly approved by the Chairman of the PMCC, Dr. Pacifico Marcos, as Special Order No.
[12]
73
under which she was to submit a report. Her authority to conduct the inspection and to submit the
corresponding report were not questioned by the private respondents. In her direct examination, Dr.
Velasco categorically admitted this official authority and duty of the petitioner. Thus:
"ATTY. MONTANA:

212

xxx

You mentioned that at the time she was one of the inspectors, inspector of what?

Philippine Medical Care Commission.

As such, therefore, she has the right and duty to inspect medical clinics?

She was assigned to inspect my clinic and as a matter of fact all clinics in Davao del Sur and
Region XI.

COURT:

And also in Region 10?

Yes, Sir.

ATTY. MONTANA:

When you were referring to Dra. Merle Alonzo, the accused in this case, having authority to
inspect all medical clinics in Davao del Sur, you are referring to medical clinics accredited with
the Philippine Medical Care Commission?
Yes, Sir.

Now, will you please tell the Honorable Court the procedure of the Philippine Medical Care
Commission regarding matters over which it exercises its jurisdiction on inspections? In other
words, why it be inspected by the Philippine Medical Care Commission?
A
These field inspectors are assigned to inspect clinics in order to see to it that clinics are
[13]
properly following rules and regulations of the Philippine Medical Care Commission."
It is precisely because of such authority that the Court of Appeals conceded that her questioned report
was a qualified privileged communication under the first paragraph of Article 354 of the Revised Penal
Code. There can then be no doubt that the petitioner made her report in the exercise of her official duty or
function. She rendered it in due course to her superior who had a duty to perform with respect to its
subject matter and which the latter faithfully did by filing the appropriate complaint against Dr. Velasco
after an evaluation of the report.
In Deao vs.. Godinez,

[14]

we held:

"Indeed, the communication now denounced by plaintiff as defamatory is one sent by defendant to his
immediate superior in the performance of a legal duty, or in the nature of a report submitted in the
exercise of an official function. He sent it as an explanation of a matter contained in an indorsement sent
to him by his superior officer. It is a report submitted in obedience to a lawful duty, though in doing so
defendant employed a language somewhat harsh and uncalled for. But such is excusable in the interest
of public policy."
In the said case, we affirmed the dismissal by the trial court of a complaint for damages arising from an

213
allegedly libelous indorsement sent by Godinez, a district supervisor, to the Division Superintendent of
Schools, his immediate superior, by way of an explanation of an alleged confusion concerning a dentalmedical report wherein Godinez stated that Deao, the school dentist, "is a carping critic, a fault-finder
and suspects every teacher or school official to be potential grafters and swindlers of the medical-dental
funds," and that "she did more harm than good to the teeth of the patients she treated."
We thus fully agree with the Court of Appeals that the report falls within the first paragraph of Article 354
of the Revised Penal Code. Consequently, the presumption of malice or malice in law was negated by the
privileged character of the report. The privilege may only be lost by proof of malice in fact. It is,
nevertheless, settled that "[a] privileged communication should not be subjected to microscopic
examination to discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection
[15]
which the law throws over privileged communications. The ultimate test is that of bona fides."
Tested under these principle, we disagree with the conclusion of the trial court that malice in fact was duly
proved in this case since the petitioner "was moved by ill-will" because Dr. Velasco did not grant her "a
loan of P1,500.00" and refused "to bear the vacation expenses of her children at the Davao Insular Hotel,
the most expensive hostelry in Davao City." This conclusion is purely conjectural for, as a matter of fact,
Dr. Velasco herself was uncertain if these incidents indeed incited the petitioner. Thus, in answer to her
counsel's question as to the possible motive why the petitioner submitted an "untruthful" report to the
PMCC, Dr. Velasco candidly declared:
"Perhaps Dra. Alonzo was angry because I was not able to give what she demanded first, when she
wanted her children to be taken to Davao for a vacation and secondly, when she asked P1,500.00 and I
was only able to produce P500.00. So maybe that was the cause why she was mad at me and she made
[16]
that report."
Dr. Velasco's deliberate use of the words perhaps and maybe clearly conveyed her incertitude. It must
also be stressed that her aforesaid testimony regarding the petitioner's motive was not directed on the
portions of the report which the trial court considered derogatory as earlier adverted to, but on the
"untruthful" report of violations. The specific question to which the above answer of Dr. Velasco was made
reads as follows:
"ATTY. MONTANA:
Q

You claimed before this Honorable Court that the facts contained in the charges against your
medical clinic, the Sto. Nio Medical Clinic, contained in Exhibit "B" which was duly served to
you by way of summons also identified as Exhibit A are not true, the basis precisely, after
reading this complaint, seems to hinge on the report of the accused to the Medical Care
Commission for certain violations, enumerated in Exhibit C. Will you please tell the Honorable
Court, since these are not true, what motivated, to your way of understanding, what motivated
[17]
the accused to make this, according to you, untruthful report to the Commission?"

Moreover, the petitioner denied the factual basis for the speculation of Dr. Velasco. Thus:
"ATTY. ALDEVERA:
Q

Dr. Alonzo, the complainant Dr. Te-Velasco also testified that you borrowed P500.00 from her,

214
is that true?
A

That is not true.

ATTY. ALDEVERA:
We reform.

Q
A

According to complainant you borrowed the amount of P1,000.00 and you received only
P500.00 is that true?
Not true.

What does this amount represent?

For the payment of the dress she got from me.

When Dr. Te-Velasco testified here in Court she said that you requested her that your children
stay at the Davao Insular Hotel, what do you say to this testimony of Dr. Velasco?
[18]
Not true.

She also denied that she purposely accompanied the private respondents to Manila to help them secure
the accreditation of their clinic in Guihing, Hagonoy, Davao del Sur, and that she stayed with them at the
[19]
Camelot Hotel in Quezon City. According to her, she has her own rented house in Quezon City.
Nor can we agree with the differing conclusion of the Court of Appeals that "the derogatory remarks were
obviously made out of ill-will or revenge, in view of the rumored threat of libel from the complainants
according to the Davao del Sur PHA grapevine." For one, this only shows that both the trial court and the
Court of Appeals could not agree on what the basis for the motive of the petitioner should be. For
another, as indicated above, the private respondents themselves focused their minds and hearts on the
untruthfulness of the violations indicated in the petitioner's report. Finally, the statement on the threat of a
libel charge was evidently based on a rumor (from the grapevine) which we, nevertheless, find to be
relevant to the report since it serves to forewarn the petitioner's superiors of the risks she and they might
meet as a consequence of her report on the violations and to emphasize the need for PMCC's firmness
and courage to pursue the appropriate charges as may be warranted in the premises.
All told then, the prosecution in this case was unable to prove malice in fact.
Finally there was, in law, no publication of the questioned report. The rule is settled that a communication
made by a public officer in the discharge of his official duties to another or to a body of officers having a
duty to perform with respect to the subject matter of the communication does not amount to a publication
[20]
within the meaning of the law on defamation.
There was also no publication when Atty. Balasabas, a third person, read the complaint against Dr.
Velasco and the report of the petitioner attached thereto. The private respondents entrusted these
documents to Atty. Balasabas with the request that he give them to their counsel, Atty. David Montaa.
Where the plaintiff himself communicated or by his acts caused the communication of the libelous matter
[21]
to a third person, there was no actionable publication.

215

WHEREFORE, the instant petition is GRANTED. The assailed decision of the Court of Appeals in CAG.R. CR No. 10504 is hereby REVERSED and petitioner DR. MERLE A. ALONZO is
hereby ACQUITTED of the crime charged.
No pronouncement as to costs.
SO ORDERED.
Padilla, (Chairman), Bellosillo, Quaison, and Kapunan, JJ., concur.

[G.R. No. 113216. September 5, 1997]

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C.

ASUNCION, in his capacity as Presiding Judge of RTC, Quezon City, respondents.
DECISION
PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of lack of probable cause
based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an
independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the
trial court is not bound by such resolution but is required to evaluate it before proceeding further with the
trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court, however, commits
reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation
and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction
over the criminal action.
This principle is explained in this Decision resolving a petition for review on certiorari of the
[1]
[2]
Decision of the Court of Appeals, promulgated on September 14, 1993 in CA-G.R. SP No. 30832
which in effect affirmed an order of the Regional Trial Court of Quezon City denying the prosecutions
withdrawal of a criminal information against petitioner.

The Antecedent Facts

From the pleadings submitted in this case, the undisputed facts are as follows:
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M.
Ledesma, petitioner herein, before the Quezon City Prosecutors Office, docketed as I.S. No. 925433A. Petitioner filed her counter-affidavit to the complaint.

216
Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an
[3]
Information for libel against petitioner with the Regional Trial Court of Quezon City, Branch 104. The
[4]
Information filed by Assistant City Prosecutor Augustine A. Vestil reads:
That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused,
acting with malice, did, then and there, wilfully, unlawfully and feloniously send a letter addressed to Dr.
Esperanza I. Cabral, Director of Philippine Heart Center, East Avenue, this city, and furnished the same
to other officers of the said hospital, said letter containing slanderous and defamatory remarks against
DR. JUAN F. TORRES, JR., which states in part, to wit:
27June 1991
Dr. Esperanza I. Cabral
Director
Subject:
Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine
Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to January 31, 1991.
Respondents:

Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section

Dr. Orestes P. Monzon,

Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this
Center, since January 31, 1989 until my resignation effective January 31, 1991, amounting to at
least P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine Section will show that from
January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised,
processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73
cases done by Dr. Monzon and Dr. Torres respectively.
Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month
supposedly representing 20% of the total monthly professional fees. The rest were divided equally
between Dr. Monzon and Dr. Torres. There was never any agreement between us three consultants that
this should be the arrangement and I am certain that this was not with your approval. The burden of
unfairness would have been lesser if there was an equal distribution of labor and the schedule of duties
were strictly followed. As it was, the schedule of duties submitted monthly to the office of the Asst.
Director for Medical Services was simply a dummy to comply with administrative requirements rather than
a guideline for strict compliance. Both consultants have complete daily time records even if they did not
come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically during the week
while I was left with everything from training the residents and supervising the Techs to processing and
interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr.
Torres.
In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni
I am calling your attention to the unfair and inhuman conditions I went through as a Consultant in that
Section. I trust that your sense of professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the distribution of professional fees in this
Section. At this point, let me stress that since professional fees vary according to the type of procedure

217
done and since there was no equity of labor between us I am not settling for an equal percentage
share. I demand that I be indemnified of all professional fees due me on a case to case basis.
Let me make clear my intention of pursuing this matter legally should there be no favorable action in my
behalf. Let me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional
and unbecoming and are clearly violating the code of ethics of the medical profession and the Philippine
Civil Service Rules and Regulations related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused very well knew, the same are
entirely false and untrue but were publicly made for no other purpose than to expose said DR. JUAN F.
TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon the person of the
said offended party, to his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before
the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the Quezon City prosecutor
[5]
to move for deferment of further proceedings and to elevate the entire records of the case. Accordingly,
a Motion to Defer Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M. Gavero before
[6]
the court a quo. On September 9, 1992, the trial court granted the motion and deferred petitioners
[7]
arraignment until the final termination of the petition for review.
Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a
[8]
Motion to Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial.
On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9,
[9]
1992 and scheduling petitioners arraignment on January 18, 1993 at two oclock in the afternoon.
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the
[10]
Quezon City investigating prosecutor. Pertinent portions of Drilons ruling read:
From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of
the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that
Dr. Ledesma was getting from complainants. Since complainants and respondent are government
employees, and the subject letter is a complaint to higher authorities of the PHCA on a subject matter in
which respondent has an interest and in reference to which she has a duty to question the same is
definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the
Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication made in good faith
upon any subject matter in which the party making the communication has an interest or concerning
which he has a duty is privileged... although it contains incriminatory or derogatory matter which, without
the privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents
righteous disposition of following the rule of law and is a clear indication that her purpose was to seek
relief from the proper higher authority who is the Director of PHCA.
The same interpretation should be accorded the civil and administrative complaints which respondent
filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for
the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the
subject communication to the Director of the PHCA, she would not have sent the second letter and filed
the administrative and civil cases against complainants.
Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter
subjected them to public and malicious imputation of a vice or omission. It is beyond the ordinary course

218
of human conduct for complainants to start feeling the effects of the alleged libelous letter - that of
experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched reputation
- one year after they read the communication in question.
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is
unfounded. In the first place, the instant cases are not being reinvestigated. It is the resolutions of the
investigating prosecutor that are under review. Further, the record shows that the court has issued an
order suspending the proceedings pending the resolutions of the petitions for review by this Office. In the
issuance of its order, the court recognizes that the Secretary of Justice has the power and authority to
review the resolutions of prosecutors who are under his control and supervision.
In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the
Informations which you filed in Court. Inform this Office of the action taken within ten (10) days from
receipt hereof.
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to
[11]
Withdraw Information dated February 17,1993, attaching thereto the resolution of Secretary
[12]
Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as follows:
The motion of the trial prosecutor to withdraw the information in the above-entitled case is
denied. Instead, the trial prosecutor of this court is hereby directed to prosecute the case following the
guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA
462.
Petitioners motion for reconsideration
[14]
1993, as follows:

[13]

was denied by the trial judge in the Order dated March 5,

Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22,
1993, the Motion for Reconsideration dated March 1, 1993 filed by the accused through counsel is hereby
denied.
Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a
Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for proper
[15]
determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129.
Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to
overturn the doctrine laid down in Crespo vs. Mogul -- once a complaint or information has been filed in
court, any disposition of the case, i.e., dismissal, conviction or acquittal of the accused, rests on the
[16]
sound discretion of the trial court.
Hence, this recourse to this Court.

The Issues
For unexplained reasons, petitioner failed to make an assignment of errors against the appellate
[17]
court. Her counsel merely repeated the alleged errors of the trial court:
I.
The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied
solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is respectfully submitted that said case is
not applicable because:

219
1.
It infringes on the constitutional separation of powers between the executive and judicial
branches of the government;
2.
It constitutes or it may lead to misuse or misapplication of judicial power as defined in the
Constitution;
3.
It goes against the constitutional proscription that rules of procedure should not diminish
substantive rights;
4.

It goes against the principle of non-delegation of powers;

5.

It sets aside or disregards substantive and procedural rules;

6.

It deprives a person of his constitutional right to procedural due process;

7.

Its application may constitute or lead to denial of equal protection of laws;

8.
It deprives the secretary of justice or the president of the power to control or review the acts of a
subordinate official;
9.
It will lead to, encourage, abet or promote abuse or even corruption among the ranks of
investigating fiscals;
10.

It does not subserve the purposes of a preliminary investigation because -

(10.a)
It subjects a person to the burdens of an unnecessary trial, specially in cases where the
investigating fiscal recommends no bail for the accused;
(10.b)
It subjects the government, both the executive and the judiciary, to unnecessary time and
expenses attendant to an unnecessary trial;
(10.c)
11.
II.

It contributes to the clogging of judicial dockets; and

It has no statutory or procedural basis or precedent.
On the assumption that Crespo vs. Mogul is applicable, it is submitted that -

1.
Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of
jurisdiction, when he denied the Motion to Withdraw Information since he had already deferred to, if not
recognized, the authority of the Secretary of Justice; and
2.
The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge
Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he relied solely on
said case in denying the Motion to Withdraw Information.
In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in
affirming the trial courts denial of the prosecutions Motion to Withdraw Information?

The Courts Ruling

220
The petition is impressed with merit. We answer the above question in the affirmative.

Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address a procedural
matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule 45,
which governed appeals from the Court of Appeals to the Supreme Court, provided:
SEC. 2.
Contents of petition.The petition shall contain a concise statement of x x x the assignment
of errors made in the court below x x x.
A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed
by the Court of Appeals, not of the trial court. For failure to follow this Rule, the petition could have been
dismissed by this Court motu proprio, considering that under Section 4 of the same Rule, review is not a
matter of right but of sound discretion.
We take this occasion to stress the need for precision and clarity in the assignment of
errors. Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusin
perpetua or life imprisonment is imposed and where the whole case is opened for review. Under Rule 45,
only the issues raised therein by the petitioner will be passed upon by the Court, such that an erroneous
specification of the issues may cause the dismissal of the petition. We stressed this in Circular No. 2-90,
entitled Guidelines to be Observed in Appeals to the Court of Appeals and to the Supreme Court, as
follows:
4.

Erroneous Appeals. x x x x

e)
Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a
judgment or order promulgated against his client to make sure of the nature of the errors he proposes to
assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court has
appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever
aware that any error or imprecision in compliance may well be fatal to his clients cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court noting the importance of the substantial matters raised decided to
overlook petitioners lapse and granted due course to the petition per Resolution dated July 15, 1996, with
a warning that henceforth petitions which fail to specify an assignment of errors of the proper lower court
may be denied due course motu proprio by this Court.

Determination of Probable Cause Is an Executive Function

The determination of probable cause during a preliminary investigation is judicially recognized as an
executive function and is made by the prosecutor. The primary objective of a preliminary investigation is
to free a respondent from the inconvenience, expense, ignominy and stress of defending himself/herself
in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a
more or less summary proceeding by a competent officer designated by law for that
purpose. Secondarily, such summary proceeding also protects the state from the burden of unnecessary
expense and effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or
[18]
groundless charges.

221
Such investigation is not a part of the trial. A full and exhaustive presentation of the parties
evidence is not required, but only such as may engender a well-grounded belief that an offense has been
[19]
committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of
preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial
pronouncement of acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of
probable cause for the issuance of a warrant of arrest or a search warrant from a preliminary investigation
[20]
proper in this wise:
xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable
cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains
whether the offender should be held for trial or released. xxx The determination of probable cause for
the warrant of arrest is made by the Judge. The preliminary investigation proper--whether xxx there is
reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether xxx
he should be subjected to the expense, rigors and embarrassment of trial--is the function of the
prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for
the determination of a sufficient ground for the filing of the information or it is an investigation for the
determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary
investigation is executive in nature. It is part of the prosecutors job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in nature and is lodged with
the judge.
Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts,
Jr. vs. Court of Appeals stressed that the determination of the existence of probable cause properly
pertains to the public prosecutor in the established scheme of things, and that the proceedings therein
are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative judgment of the
[21]
guilt or innocence of the persons charged with a felony or a crime.
[22]

In Crespo vs. Mogul, the Court emphasized the cardinal principle that the public prosecutor
controls and directs the prosecution of criminal offenses thus:
It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be
prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon
the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow
that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not
to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal
prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution
by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power
vested in them by law, not only have the authority but also the duty of prosecuting persons who,
according to the evidence received from the complainant, are shown to be guilty of a crime committed
within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an
investigation they become convinced that the evidence adduced is not sufficient to establish a prima
facie case.
In the same case, the Court added that where there is a clash of views between a judge who did not
investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally
[23]
prevail:
x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It is
not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally

222
initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for
conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a
certain period of time, since this would interfere with the fiscals discretion and control of criminal
prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has
authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case
and subsequently move for the dismissal should the re-investigation show either that the defendant is
innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between
the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or
the defendant, those of the fiscals should normally prevail. x x x x.

Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under
the Revised Administrative Code, exercises the power of direct control and supervision over said
prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives
the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial
and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section
38, paragraph 1, Chapter 7, Book IV of the Code:
(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; xxxx.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007,
which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the
State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of
Justice in the interest of public service.
xxx

xxx

xxx
Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific
power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the
same shall be understood as also conferred upon the proper Department Head who shall have authority
to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of
bureau, office, division or service.
Supervision and control of a department head over his subordinates have been defined in
[24]
administrative law as follows:
In administrative law supervision means overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take
such action or step as prescribed by law to make them perform such duties. Control, on the other hand,
means the power of an officer 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 judgment of the former for that of the latter.

223
Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors
finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or
negligence committed in the initial steps of an administrative activity or by an administrative agency
should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after
administrative remedies are exhausted may judicial recourse be allowed.

Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo

[25]

[26]

In Marcelo vs. Court of Appeals, the Court clarified that Crespo did not foreclose the power or
authority of the secretary of justice to review resolutions of his subordinates in criminal cases. The Court
recognized in Crespo that the action of the investigating fiscal or prosecutor in the preliminary
investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter,
it may be appealed to the secretary of justice.
The justice secretarys power of review may still be availed of despite the filing of an information in
court. In his discretion, the secretary may affirm, modify or reverse resolutions of his subordinates
[27]
pursuant to Republic Act No. 5180, as amended, specifically in Section 1 (d):
(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State
Prosecutor is, upon review, reversed by the Secretary of Justice, the latter may, where he finds that
no prima facie case exists, authorize and direct the investigating fiscal concerned or any other fiscal or
state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to
cause the filing of an information in court against the respondent, based on the same sworn statements or
evidence submitted without the necessity of conducting another preliminary investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990
governing appeals in preliminary investigation. Appeals under Section 2 are limited to resolutions
dismissing a criminal complaint. However, Section 4 provides an exception: appeals from resolutions
finding probable cause upon a showing of manifest error or grave abuse of discretion are allowed,
provided the accused has not been arraigned. In the present case, petitioners appeal to the secretary of
justice was given due course on August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the
scope of appealable cases remained unchanged:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal
to the Secretary of Justice except as otherwise provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense
charged does not exceed prisin correccional, regardless of the imposable fine, shall be made to the
Regional State Prosecutors who shall resolve the appeals with finality, pursuant to Department Order No.
318 dated August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated
August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed by these
rules.
SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief
State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except
upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest
error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be
dismissed motu proprio by the Secretary of Justice.

224
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the
filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of review of the secretary
of justice is recognized also by Section 4 of Rule 112 of the Rules of Court:
SEC. 4. Duty of investigating fiscal.--x x x x
xxx

xxx

xxx
If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city
fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information
without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint
or information.
This appeal rests upon the sound discretion of the secretary of justice arising from his power of
supervision and control over the prosecuting arm of the government, not on a substantial right on the part
of the accused as claimed by petitioner.

Appeal Did Not Divest the Trial Court of Jurisdiction

Where the secretary of justice exercises his power of review only after an information has been filed,
trial courts should defer or suspend arraignment and further proceedings until the appeal is
resolved. Such deferment or suspension, however, does not signify that the trial court is ipso facto bound
by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost
despite a resolution by the secretary of justice to withdraw the information or to dismiss the case.

Judicial Review of the Resolution of the Secretary of Justice

Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual
controversies involving rights which are legally demandable and enforceable. Such power includes the
determination of whether there has been a grave abuse of discretion amounting to lack or excess of
[28]
jurisdiction on the part of any branch or instrumentality of the government. Under this definition, a court
is without power to directly decide matters over which full discretionary authority has been delegated to
the legislative or executive branch of the government. It is not empowered to substitute its judgment for
that of Congress or of the President. It may, however, look into the question of whether such exercise
has been made in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority over them or a
[29]
derogation of their functions. In the words of Justice Laurel inAngara vs. Electoral Commission:
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, 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 sources and guarantees to them. This is
in truth all that is involved in what is termed judicial supremacy which properly is the power of the judicial
review under the Constitution. x x x.

225
It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to
review the decisions of the government prosecutors under him. InCrespo, the secretary was merely
advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of
Court, which recognizes such power, does not, however, allow the trial court to automatically dismiss the
case or grant the withdrawal of the information upon the resolution of the secretary of justice. This is
[30]
precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals and the recent case of Roberts,
Jr. vs. Court of Appeals, which all required the trial court to make its own evaluation of the merits of the
case, because granting the motion to dismiss or to withdraw the information is equivalent to effecting a
disposition of the case itself.

The Marcelo and Martinez Cases Are Consistent

[31]

In Marcelo vs. Court of Appeals, this Court ruled that, although it is more prudent to wait for a final
resolution of a motion for review or reinvestigation from the secretary of justice before acting on a motion
to dismiss or a motion to withdraw an information, a trial court nonetheless should make its own study
and evaluation of said motion and not rely merely on the awaited action of the secretary. The trial court
has the option to grant or deny the motion to dismiss the case filed by the fiscal, whether before or after
the arraignment of the accused, and whether after a reinvestigation or upon instructions of the secretary
who reviewed the records of the investigation; provided that such grant or denial is made from its own
assessment and evaluation of the merits of the motion.
[32]

In Martinez vs. Court of Appeals, this Court overruled the grant of the motion to dismiss filed by
the prosecuting fiscal upon the recommendation of the secretary of justice because such grant was based
upon considerations other than the judges own assessment of the matter. Relying solely on the
conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to
sustain the allegation in the information, the trial judge did not perform his function of making an
independent evaluation or assessment of the merits of the case.
Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of
Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or
information is filed in court, any disposition of the case such as its dismissal or its continuation rests on
the sound discretion of the court. Trial judges are thus required to make their own assessment of whether
the secretary of justice committed grave abuse of discretion in granting or denying the appeal, separately
and independently of the prosecutions or the secretarys evaluation that such evidence is insufficient or
that no probable cause to hold the accused for trial exists. They should embody such assessment in their
written order disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the
dismissal of the criminal action upon the favorable recommendation of the Review Committee, Office of
the City Prosecutor, was precipitate in view of the pendency of private complainants appeal to the
secretary of justice. In effect, the secretarys opinion was totally disregarded by the trial court. In
contrast, in Martinez the dismissal of the criminal action was an erroneous exercise of judicial discretion
as the trial court relied hook, line and sinker on the resolution of the secretary, without making its own
independent determination of the merits of the said resolution.

No Grave Abuse of Discretion in theResolution of the Secretary of Justice

In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the
correctness of the justice secretarys resolution has been amply threshed out in petitioners letter, the
information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive
discussion in the motion for reconsideration all of which were submitted to the court -- the trial judge
committed grave abuse of discretion when it denied the motion to withdraw the information, based solely

226
on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our repetitive
calls for an independent and competent assessment of the issue(s) presented in the motion to
dismiss. The trial judge was tasked to evaluate the secretarys recommendation finding the absence of
probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed
with the trial without stating his reasons for disregarding the secretarys recommendation.
Had he complied with his judicial obligation, he would have discovered that there was, in fact,
sufficient ground to grant the motion to withdraw the information. The documents before the trial court
judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court would normally remand
the case to the trial judge for his or her independent assessment of the motion to withdraw the
information. However, in order not to delay the disposition of this case and to afford the parties complete
relief, we have decided to make directly the independent assessment the trial court should have
done. The petitioner has attached as annexes to the present petition for review the information, which
contains a complete and faithful reproduction of the subject letter, the resolution of the secretary of
justice, the prosecutions motion for reconsideration of the trial courts Order of February 22, 1993, and
even the private complainants opposition to said motion. The records below have been reproduced and
submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose and will
only clog the dockets.
We thus proceed to examine the substance of the resolution of the secretary of justice. The
secretary reversed the finding of probable cause on the grounds that (1) the subject letter was privileged
in nature and (2) the complaint was merely a countercharge.
In every case for libel, the following requisites must concur:
(a)

it must be defamatory;

(b)

it must be malicious;

(c)

it must be given publicity; and

(d)

the victim must be identifiable.

At the preliminary investigation stage, these requisites must show prima facie a well-founded belief
that a crime has been committed and that the accused probably committed it. A cursory reading of the
information immediately demonstrates a failure on the part of the complainant to establish the foregoing
elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable
motive for making it is shown. There is malice when the author of the imputation is prompted by personal
ill will or spite and speaks not in response to duty but merely to injure the reputation of the person who
[33]
claims to have been defamed.
In this case however, petitioners letter was written to seek redress of
proper grievance against the inaccurate distribution and payment of professional fees and against unfair
treatment in the Nuclear Medicine Department of the Philippine Heart Center. It is a qualified privileged
communication under Article 354(1) of the Revised Penal Code which provides:
ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if
it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or
social duty; and
xxx
xxx

xxx

227
The rule on privileged communication is that a communication made in good faith on any subject
matter in which the communicator has an interest, or concerning which he has a duty, is privileged if
made to a person having a corresponding interest or duty, although it contains incriminatory matter which,
without the privilege, would be libelous and actionable. Petitioners letter was a private communication
made in the performance of a moral duty on her part. Her intention was not to inflict an unjustifiable harm
on the private complainant, but to present her grievance to her superior. The privileged nature of her
letter overcomes the presumption of malice. There is no malice when justifiable motive exists; and in the
absence of malice, there is no libel. We note that the information itself failed to allege the existence of
malice.
Thus, we agree with the ruling of the secretary of justice:

[34]

x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center
for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting
from government employees, and the subject letter is a complaint x x x on a subject matter in which
respondent has an interest and in reference to which she has a duty to question the same is definitely
privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme
Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith upon any
subject matter in which the party making the communication has an interest or concerning which he has a
duty is privileged although it contains incriminatory or derogatory matter which, without the privilege,
would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents
righteous disposition of following the rule of law and is a clear indication that her purpose was to seek
relief from the proper higher authority xxx.
The same interpretation should be accorded the civil and administrative complaints which respondent
filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for
the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the
subject communication to the Director of the PHCA, she would not have sent the second letter and filed
the administrative and civil cases against complainants.
In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties,
sends a communication to another officer or to a body of officers, who have a duty to perform with respect
to the subject matter of the communication, such communication does not amount to publication within
[35]
the meaning of the law on defamation. Publication in libel means making the defamatory matter, after it
[36]
has been written, known to someone other than the person to whom it has been written. The reason for
such rule is that a communication of the defamatory matter to the person defamed cannot injure his
reputation though it may wound his self-esteem. A mans reputation is not the good opinion he has of
[37]
himself, but the estimation in which others hold him. In this case, petitioner submitted the letter to the
director of said hospital; she did not disseminate the letter and its contents to third persons. Hence, there
was no publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code.
Further, we note that the information against petitioner was filed only on July 27, 1992 or one year
after June 27, 1991, the date the letter was sent. It is obviously nothing more than a countercharge to
give Complainant Torres a leverage against petitioners administrative action against him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the
reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded by
the fact that he did not explain his grounds for his denial inasmuch as he did not make an independent
assessment of the motion or the arguments in the resolution of the secretary of justice. All in all, such
rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he
supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required trial
courts to make an independent assessment of the merits of the motion.

228
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to
Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No costs.
SO ORDERED.
Davide, Jr., Melo, and Francisco, JJ., concur.
Narvasa C.J., no part: Close relation to a party:

LEDESMA VS. COURT OF APPEALS Case Digest

LEDESMA VS. COURT OF APPEALS

160 SCRA 449

FACTS
Violeta Delmo who was supposed to graduate magna cum luade was not allowed to do so because of
her act of lending money to members of organization of which she was a member. According to the
school authorities, that act was against school rules and regulations. This the President of the state
college did, despite her qualifications and the Bureau of Public Schools instruction not to deprive her of
the honors due to her, but just the same, she was graduated as a plain student. The Supreme Court said
that she went through a painful ordeal brought about by the Presidents neglect of duty and callousness.
Hence, moral damages and exemplary damage were proper. The basis of the decision was article 27,
NCC, where a person suffering material or moral loss because a public employee refuses or neglects,
without just cause, to perform his official duty may file an action of damages and other relief again the
latter.

ISSUE:
Is the school president liable for damages?
HELD:

It cannot be disputed that Violeta Delmo went through a painful ordeal, which was brought about by the
petitioner's neglect of duty and callousness. Thus, moral damages are but proper.

The Solicitor- General tried to cover-up the petitioner's deliberate omission to inform Miss Delmo by
stating that it was not the duty of the petitioner to furnish her a copy of the Director's decision. Granting
this to be true, it was nevertheless the petitioner's duty to enforce the said decision. He could have done
so considering that he received the decision XXX and even though he sent it back with the records of the
case, he undoubtedly read the whole of it, which consisted of only 3 pages. Moreover, the petitioner

229
should have had the decency to meet Mr. Delmo, the girl's father, and inform the latter, at the very lest of
the decision. This, the petitioner failed to do, and not without the attendant bad faith which the appellate
court correctly pointed out in its decision.

G.R. No. L-65695

December 19, 1983

HECTOR S. RUIZ, as coordinator of the Olongapo Citizen's Alliance for National Reconciliation,
petitioner,
vs.
RICHARD GORDON, as City Mayor of Olongapo City, respondent.

Teddy C. Macapagal and Engelberto de Castro for petitioners.

Ma. Ellen M. Aguilar for respondent.

FERNANDO, CJ.:

The constitutional rights to free speech and free assembly are invoked in this mandamus proceeding filed
on November 25, 1983 against respondent Richard Gordon , Mayor of Olongapo City. It was alleged: "On
21 November 1983, petitioner personally delivered to the respondent a letter application dated 19
November 1983, the full text of which read as follows: ' November 19, 1983, The Honorable City Mayor,
Olongapo City. Sir.: In behalf of the Olongapo Citizen's Alliance for national Reconciliation , Justice for
Aquino Justice for All (JAJA), Concern (sic) Citizen for Justice and Peace (CCJP), Damdamin Bayan na
Nagkakaisa (DAMBANA), United Nationalist Democratic Organization (UNIDO), we are respectfully
requesting for a permit to hold a prayer-rally at the Rizal Triangle, Olongapo City on December 4,1983
from 1:00 P.M. until it will be finished in the early evening. It is likewise requested the above named
organizations to be allowed to hold a parade/march from Gordon Avenue to the Rizal Triangle starting at
1:00 P.M. Your preferential attention on this request will be highly appreciated. [It was signed by petitioner
Hector S. Ruiz, Coordinator of Olongapo Citizen's Alliance for National Reconciliation.]" 1 Reference was
then made to the minute resolution of this Court in Jose B.L. Reyes v. Bagatsing. 2 The prayer was for
"the immediate issuance of the writ of mandamus, without prejudice to an extended decision; or that a writ
of preliminary mandatory injunction be issued immediately so as not to render moot and academic the
purpose for which the permit was applied for on 4 December 1983 from 1:00 to 6:00 (early evening)
o'clock in the afternoon." 3

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At the next session day, on November 29, 1983, the Court issued the following resolution: "The Court ,
after considering the pleadings filed and deliberating on the issues raised in the petition for mandamus
with prayer for a writ of preliminary mandatory injunction filed on November 25,1983, Resolved to require
the respondents to file an ANSWER, not a motion to dismiss, within two(2) days from notice." 4

On the very afternoon of the same day, there was this manifestation from respondent Mayor: "1. On
November 22, 1983, the petitioner, allegedly the coordinator of the, Olongapo Citizen's Alliance for
National Reconciliation, had their request for a prayer rally and parade/march received in the Office of the
Mayor. 2. That even before the request, the respondent had repeatedly announced in his regular program
on Sunday over the radio (DWGO) and at the Monday morning flag ceremony before hundreds of
government employees that he would grant the request of any group that would like to exercise their
freedom of speech and assembly. 3. That respondent when interviewed on the matter by the Editor-in
Chief of the 'Guardian', a newspaper of general circulation in Olongapo and Zambales, mentioned the fact
that he had granted the permit of the petitioner, which interview appeared in the November 22-28, 1983
issue of the said newspaper. A copy of the newspaper is hereto attached and made an integral part
hereof as Annex 'A'. 4. On November 23, 1983, the City Mayor approved the request of the petitioner to
hold a prayer rally and a parade/march on December 4, 1983. A copy of the permit is hereto attached and
made an integral part hereof as Annex 'B'. 5 " The prayer was for the dismissal of the petition. The permit
reads as follows: "23 November 1983, Dr. Hector S. Ruiz, Coordinator, Olongapo Citizen's Alliance for
National Reconciliation, Olongapo City. Dear Dr. Ruiz: Your request for a PERMIT to hold a prayer rally at
the Rizal Triangle, Olongapo City and a parade/march from Gordon Avenue at 1:00 p.m. of 4 December
1983 as stated in your letter dated 19 November 1983 received in this office on 22 November is hereby
GRANTED provided that: 1. The parade/march and rally will be peaceful and orderly; 2. Your organization
will be responsible for any loss or damage to government property and for the cleanliness of the Rizal
Triangle; 3. The parade/march shall proceed from the corner of Gordon Ave., and Magsaysay Drive, to
Rizal Ave., thence to the Rizal Triangle. Please coordinate with the Integrated National Police for
appropriate traffic assistance. Very truly yours, (Sgd.) Richard J. Gordon, City Mayor." 6

At its next session then of November 27, the Court, in the light of the above manifestation, resolved to
grant such plea for dismissal. From petitioner came, on December 1, 1983, a motion dated November 29
to withdraw petition. As therein stated: "Petitioner, by counsel, respectfully moves to withdraw the aboveentitled petition on the ground that the permit being sought in the prayer-rally to be held on 4 December
1983 from 1:00 to 6:00 PM has been granted by the respondent." 7 Then the next day, December 2,
1983, the answer of respondent came reiterating what was set forth in his manifestation. The reason for
the delay of such pleading, the due date the service had been served on petitioner being December 1,
1983, was obviously the distance between Manila and Olongapo City. It was not served until November
30. At any rate, no prejudice was caused either party as in the meanwhile, the Court had acted on the
very day the manifestation was submitted. That was on December 1, 1983.

There is relevance to a recital of such facts. It appears that the guidelines set forth in the extended
opinion in the aforesaid J.B.L. Reyes decision as to the role of the judiciary in petitions for permits to hold
peaceable assembles may have to be supplemented. This is how the J.B.L. Reyes opinion reads on this

231
point: "The applicants for a permit to hold an assembly should inform the licensing authority of the date,
the public place where and the time when it will take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is required. Such application should be filed well
ahead in time to enable the public official concerned to appraise whether there may be valid objections to
the grant of the permit or to its grant but at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be the standard for the decision reached. If
he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants
must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper
judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are
highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the
judiciary, even more so than on the other departments rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can,
of course, dispense with what has been so felicitously termed by Justice Holmes 'as the sovereign
prerogative of judgment.' Nonetheless, the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent
that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro
tanto modified. So it was made clear in the original resolution of October 25, 1983. " 8

As shown both in the manifestation and the answer, this action for mandamus could have been obviated
if only petitioner took the trouble of verifying on November 23 whether or not a permit had been issued. A
party desirous of exercising the right to peaceable assembly should be the one most interested in
ascertaining the action taken on a request for a permit. Necessarily, after a reasonable time or, if the day
and time was designated for the decision on the request, such party or his representative should be at the
office of the public official concerned. If he fails to do so, a copy of the decision reached, whether adverse
or favorable, should be sent to the address of petitioner. In that way, there need not be waste of time and
effort not only of the litigants but likewise of a court from which redress is sought in case of a denial or
modification of a request for a permit.

Lately, several petitions of this character have been filed with this court. It could be due to the lack of
knowledge of the guidelines set forth in the extended opinion. Steps have been taken to send the
Regional Trial judges copies thereof. In the future, therefore, without precluding the filing of petitions
directly with this Court, the interest of justice and of public convenience would be better served if litigation
starts on the trial court level.

While, therefore, this petition should be dismissed, the Court deems it best to set forth the above to
specify in more detail, the steps necessary for the judicial protection of constitutional rights with the least
delay and inconvenience to the parties and with the greater assurance that the factual background on
which is dependent the determination of whether or not the clear and present danger standard has been
satisfied. Lastly, a certiorari petition to this Court is likewise available to the losing party.

WHEREFORE, as prayed for, this case is dismissed.

232

Makasiar, Aquino, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Relova and
Gutierrez, Jr., JJ., concur.

Ruiz v Gordon G.R. No. L-65695 December 19, 1983

C. J. Fernando
Facts:
Hector S. Ruiz, Coordinator of Olongapo Citizen's Alliance for National Reconciliation, filed apetition for
mandamus against Richard Gordon to be allowed to hold a parade/march from Gordon Avenue to the
Rizal Triangle starting at 1:00 P.M.
The Court required the respondents to answer. Respondents replied by stating the request for a prayer
rally was received in the Office of the Mayor and that respondent had repeatedly announced in his regular
program on Sunday over the radio (DWGO) and at the Monday morning flag ceremony before hundreds
of government employees that he would grant the request of any group that would like to exercise
their freedom of speech and assembly.
When interviewed on the matter by the Editor-in Chief of the 'Guardian', he mentioned the fact that he had
granted the permit of the petitioner, which interview appeared in the November 22-28, 1983 issue of the
said newspaper.
Given these, the respondent prayed for the dismissal of the petition. This was complied with.
Issue: Can the petition be granted?
Held No. Petition dismissed.
Ratio:
The Reyes case was given some discussion in the course of this petition as to the role of the judiciary in
petitions for permits to hold peaceable assembles.
"The applicants for a permit to hold an assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a private place, only the consent of the
owner or the one entitled to its legal possession is required. Such application should be filed well ahead in
time to enable the public official concerned to appraise whether there may be valid objections to the grant
of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard
on the matter.
Thereafter, his decision must be transmmitted to them at the earliest opportunity. They can have recourse
to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that
on the judiciary, even more so than on the other departments rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights.
As shown both in the manifestation and the answer, this action for mandamus could have been obviated
if only petitioner took the trouble of verifying on November 23 whether or not a permit had been issued. A
party desirous of exercising the right to peaceable assembly should be the one most interested in
ascertaining the action taken on a request for a permit. Necessarily, after a reasonable time or, if the day
and time was designated for the decision on the request, such party or his representative should be at the
office of the public official concerned. If he fails to do so, a copy of the decision reached, whether adverse
or favorable, should be sent to the address of petitioner.
Teehankee concurring:
The burden to show the existence of such grave and imminent danger that would justify an adverse
action lies on the mayor as the licensing authority. There must be objective and convincing, not subjective
or conjectural, proof of the existence of such clear and present danger. As the Court stated in its
Resolution of October 25, 1983 in the J. B. L. Reyes case, "It is essential for the validity of a denial of a

233
permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely
on his own appraisal of what public welfare, peace or safety may require. To justify such a limitation,
there must be proof of such weight and sufficiency to satisfy the clear and present danger test. The
possibility that subversives may infiltrate the ranks of the demonstrators is not enough."
As likewise underscored in the J. B. L. Reyes case, the exercise of the right of peaceable assembly is not
to be 4 abridged on the plea that it may be exercised in some other place" (at paragraph 6) and "It is the
duty of the city authorities to provide the proper police protection to those exercising their right to
peaceable assembly and freedom of expression" (at paragraph 7).
J. Conception concurring opinion
9
In order that public officials may not be charged, rightly or wrongly, with dereliction of duty or
abuse of powers in the granting or denying of such permits, the following guidelines are deemed
necessary:
(a) When a peaceful assembly is to be held in a private lot, house, or edifice, only the consent of the
owner of the place is necessary. No permit from the government or any public officer is required.
(b) When an application to hold a rally, parade, or peaceful assembly has to make use of public places
like parks, plazas, and streets, the public authority charged with the duty of granting or denying the permit
should also consider the convenience and the right of the rest of the public to use and enjoy these same
facilities.
(c) Conditions of peace and order in the locality should be carefully considered and precautionary steps
taken to prevent vandals, hooligans, provocateurs, and other criminals from turning into a violent one
what otherwise should be a peaceful demonstration,

A.M. No. 2440-CFI July 25, 1981

IGLESIA NI CRISTO, Complainant, vs. JUDGE LEOPOLDO B. GIRONELLA, COURT OF FIRST

INSTANCE OF ABRA, Respondent.
Facts
of the Iglesia ni Cristo, took umbrage on the portion of the opinion of
Judge Leopoldo Gironella in the course of acquittingthe defendants accused of Triple Rape:
s taken by
him from July 28, 1979 - August 21 to denounce tothe proper authorities what allegedly had happened to
his wife Merlinda Ola. Merlinda Ola, however, is a member of the INK Her husband Florencio Olaand her
in-lawj s were still in the process of being convinced to become members. As testified to by complainant
Merlinda Ola, she also consulted herbrothers of the INK as it was thru their assistance that made possible
the institution of this action. Her husband and in-laws are now members of the INK.It cannot, therefore, be
discarded that the filing of the charge was resorted to as a gimmick of showing to the community of La
Paz, Abra in particular andto the public in general that the Iglesia ni Cristo unhesitatingly helps its
member of his/her problem."

and evaluation of the evidence for the prosecution,particularly the statement of the complainant witness
(Merlinda Ola), in addition to the fact that she had always been accompanied in court during thetrial by
Ministers of the Iglesia ni Cristo and numerous members of the sect.

seriously putting under doubt judge'scompetency and integrity as a magistrate of the law.

234

inaccurate to state that asunderstood in the popular sense, it is not exactly complimentary. It is to be
expected that a religious sect accused of having to resort to a"gimmick" to gain converts would certainly
be far from pleased. Freedom of religion 5 implies respect for every creed. No one, much lessa public
official, is privileged to characterize the actuation of its adherents in a derogatory sense. It should not be
lost sight of either thatthe attendance at a trial of many members of a religious sect finds support in the
Constitution. The right to a public trial is safeguarded bythe fundamental law. 6 The Court, however, takes
into consideration the fact that the right of a court to give expression to its views isequally deserving of
protection. While under the circumstances, some members of the Court are of the opinion that censure is
warranted,it is the view of the majority that an admonition would suffice.

of language likely to offend anindividual or religious sect.

Estrada vs. Escritor AM P-02-1651, August 4, 2003

FACTS:
Soledad Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. Alejandro Estrada, the
complainant, wrote to Judge Jose F. Caoibes, presiding judge of Branch 253, RTC of Las Pinas City,
requesting for an investigation of rumors that Escritor has been living with Luciano Quilapio Jr.,a man not
her husband, and had eventually begotten a son. Escritors husband, who had lived with another woman,
died a year before she entered intothe judiciary. On the other hand, Quilapio is still legally married to
another woman. Estrada is not related to either Escritor or Quilapio and is not aresident of Las Pinas but
of Bacoor, Cavite. According to the complainant, respondent should not be allowed to remain employed in
the judiciary for itwill appear as if the court allows such act.Escritor is a member of the religious sect
known as the Jehovahs Witnesses and the Watch Tower and Bible Tract Society where her
conjugalarrangement with Quilapio is in conformity with their religious beliefs. After ten years of living
together, she executed on July 28, 1991 a Declarationof Pledging Faithfulness which was approved by
the congregation. Such declaration is effective when legal impediments render it impossible for acouple to
legalize their union. Gregorio, Salazar, a member of the Jehovahs Witnesses since 1985 and has been a
presiding minister since 1991,testified and explained the import of and procedures for executing the
declaration which was completely executed by Escritor and Quilapios inAtimonan, Quezon and was
signed by three witnesses and recorded in Watch Tower Central Office.
ISSUE:
Whether or not respondent should be found guilty of the administrative charge of gross and immoral
conduct and be penalized by the State for suchconjugal arrangement.
HELD:

A distinction between public and secular morality and religious morality should be kept in mind. The
jurisdiction of the Court extends only to public andsecular morality.The Court states that our Constitution
adheres the benevolent neutrality approach that gives room for accommodation of religious exercises as

235
required by the Free Exercise Clause. This benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offendcompelling state interests.The states interest is the
preservation of the integrity of the judiciary by maintaining among its ranks a high standard of morality
and decency. There isnothing in the OCAs (Office of the Court Administrator) memorandum to the Court
that demonstrates how this interest is so compelling that it shouldoverride respondents plea of religious
freedom. Indeed, it is inappropriate for the complainant, a private person, to present evidence on the
compellinginterest of the state. The burden of evidence should be discharged by the proper agency of the
government which is the Office of the Solicitor General.In order to properly settle the case at bar, it is
essential that the government be given an opportunity to demonstrate the compelling state interest it
seeksto uphold in opposing the respondents position that her conjugal arrangement is not immoral and
punishable as it is within the scope of free exercise protection. The Court could not prohibit and punish
her conduct where the Free Exercise Clause protects it, since this would be an
unconstitutionalencroachment of her right to religious freedom. Furthermore, the court cannot simply take
a passing look at respondents claim of religious freedom butmust also apply the compelling state
interest test.IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The
Solicitor General is ordered to intervene in the casewhere it will be given the opportunity (a) to examine
the sincerity and centrality of respondent's claimed religious belief and practice; (b) to presentevidence on
the state's "compelling interest" to override respondent's religious belief and practice; and (c) to show that
the means the state adopts in pursuing its interest is the least restrictive to respondent's religious
freedom. The rehearing should be concluded thirty (30) days from the Office of theCourt Administrator's
receipt of this Decision.