1

Skipper united v doza

This is a Petition for Review under Rule 45 assailing the 5 July 2006 Decision1 and 7 November 2006
Resolution2 of the Court of Appeals in CA-G.R. SP No. 88148.3
This arose from consolidated labor case4 filed by seafarers Napoleon De Gracia (De Gracia), Isidro L. Lata
(Lata), Charlie Aprosta (Aprosta), and Nathaniel Doza (Doza) against local manning agency Skippers United
Pacific, Inc. and its foreign principal, Skippers Maritime Services, Inc., Ltd. (Skippers) for unremitted home
allotment for the month of December 1998, salaries for the unexpired portion of their employment contracts,
moral damages, exemplary damages, and attorneys fees. Skippers, on the other hand, answered with a claim
for reimbursement of De Gracia, Aprosta and Latas repatriation expenses, as well as award of moral damages
and attorneys fees.
De Gracia, Lata, Aprosta and Dozas (De Gracia, et al.) claims were dismissed by the Labor Arbiter for lack of
merit.5 The Labor Arbiter also dismissed Skippers claims.6 De Gracia, et al. appealed7 the Labor Arbiters
decision with the National Labor Relations Commission (NLRC), but the First Division of the NLRC dismissed
the appeal for lack of merit.8 Doza, et al.s Motion for Reconsideration was likewise denied by the NLRC,9 so
they filed a Petition for Certiorari with the Court of Appeals (CA).10

The CA granted the petition, reversed the Labor Arbiter and NLRC Decisions, and awarded to De Gracia, Lata
and Aprosta their unremitted home allotment, three months salary each representing the unexpired portion of
their employment contracts and attorneys fees.11 No award was given to Doza for lack of factual basis.12 The
CA denied Skippers Motion for Partial Reconsideration.13 Hence, this Petition.
The Facts

Skippers United Pacific, Inc. deployed, in behalf of Skippers, De Gracia, Lata, and Aprosta to work on board
the vessel MV Wisdom Star, under the following terms and conditions:
Name: Napoleon O. De Gracia
Position: 3rd Engineer
Contract Duration: 10 months
Basic Monthly Salary: US$800.00
Contract Date: 17 July 199814
Name: Isidro L. Lata
Position: 4th Engineer
Contract Duration: 12 months
Basic Monthly Salary: US$600.00
Contract Date: 17 April 199815
Name: Charlie A. Aprosta
Position: Third Officer
Contract Duration: 12 months
Basic Monthly Salary: US$600.00
Contract Date: 17 April 199816
Paragraph 2 of all the employment contracts stated that: The terms and conditions of the Revised
Employment Contract Governing the Employment of All Seafarers approved per Department Order No. 33 and
Memorandum Circular No. 55, both series of 1996 shall be strictly and faithfully observed.17 No employment
contract was submitted for Nathaniel Doza.

De Gracia, et al. claimed that Skippers failed to remit their respective allotments for almost five months,
compelling them to air their grievances with the Romanian Seafarers Free Union.18 On 16 December 1998,
ITF Inspector Adrian Mihalcioiu of the Romanian Seafarers Union sent Captain Savvas of Cosmos Shipping a
fax letter, relaying the complaints of his crew, namely: home allotment delay, unpaid salaries (only advances),
late provisions, lack of laundry services (only one washing machine), and lack of maintenance of the vessel
(perforated and unrepaired deck).19 To date, however, Skippers only failed to remit the home allotment for the
month of December 1998.20 On 28 January 1999, De Gracia, et al. were unceremoniously discharged from
MV Wisdom Stars and immediately repatriated.21 Upon arrival in the Philippines, De Gracia, et al. filed a
complaint for illegal dismissal with the Labor Arbiter on 4 April 1999 and prayed for payment of their home
allotment for the month of December 1998, salaries for the unexpired portion of their contracts, moral
damages, exemplary damages, and attorneys fees.22
Skippers, on the other hand, claims that at around 2:00 a.m. on 3 December 1998, De Gracia, smelling
strongly of alcohol, went to the cabin of Gabriel Oleszek, Master of MV Wisdom Stars, and was rude, shouting
noisily to the master.23 De Gracia left the masters cabin after a few minutes and was heard shouting very
loudly somewhere down the corridors.24 This incident was evidenced by the Captains Report sent via telex to
Skippers on said date.25
Skippers also claims that at 12:00 noon on 22 January 1999, four Filipino seafarers, namely Aprosta, De
Gracia, Lata and Doza, arrived in the masters cabin and demanded immediate repatriation because they were
not satisfied with the ship.26 De Gracia, et al. threatened that they may become crazy any moment and
demanded for all outstanding payments due to them.27 This is evidenced by a telex of Cosmoship MV Wisdom
to Skippers, which however bears conflicting dates of 22 January 1998 and 22 January 1999.28
Skippers also claims that, due to the disembarkation of De Gracia, et al., 17 other seafarers disembarked
under abnormal circumstsances.29 For this reason, it was suggested that Polish seafarers be utilized instead
of Filipino seamen.30 This is again evidenced by a fax of Cosmoship MV Wisdom to Skippers, which bears
conflicting dates of 24 January 1998 and 24 January 1999.31
Skippers, in its Position Paper, admitted non-payment of home allotment for the month of December 1998, but
prayed for the offsetting of such amount with the repatriation expenses in the following manner:32

Seafarer

Repatriation Expense

Home Allotment

Balance

De Gracia

US$1,340.00

US$900.00

US$440.00

Aprosta

US$1,340.00

US$600.00

US$740.00

Lata

US$1,340.00

US$600.00

US$740.00

Since De Gracia, et al. pre-terminated their contracts, Skippers claims they are liable for their repatriation
expenses33 in accordance with Section 19(G) of Philippine Overseas Employment Administration (POEA)
Memorandum Circular No. 55, series of 1996 which states:

G. A seaman who requests for early termination of his contract shall be liable for his repatriation cost as well
as the transportation cost of his replacement. The employer may, in case of compassionate grounds, assume
the transportation cost of the seafarers replacement.
Skippers also prayed for payment of moral damages and attorneys fees.34

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The Decision of the Labor Arbiter
The Labor Arbiter rendered his Decision on 18 February 2002, with its dispositive portion declaring:
WHEREFORE, judgment is hereby rendered dismissing herein action for lack of merit. Respondents claim for
reimbursement of the expenses they incurred in the repatriation of complainant Nathaniel Doza is likewise
dismissed.

SO ORDERED.35
The Labor Arbiter dismissed De Gracia, et al.s complaint for illegal dismissal because the seafarers
voluntarily pre-terminated their employment contracts by demanding for immediate repatriation due to
dissatisfaction with the ship.36 The Labor Arbiter held that such voluntary pre-termination of employment
contract is akin to resignation,37 a form of termination by employee of his employment contract under Article
285 of the Labor Code. The Labor Arbiter gave weight and credibility to the telex of the master of the vessel to
Skippers, claiming that De Gracia, et al. demanded for immediate repatriation.38 Due to the absence of illegal
dismissal, De Gracia, et. al.s claim for salaries representing the unexpired portion of their employment
contracts was dismissed.39
The Labor Arbiter also dismissed De Gracia et al.s claim for home allotment for December 1998.40 The Labor
Arbiter explained that payment for home allotment is in the nature of extraordinary money where the burden of
proof is shifted to the worker who must prove he is entitled to such monetary benefit.41 Since De Gracia, et al.
were not able to prove their entitlement to home allotment, such claim was dismissed.42
Lastly, Skippers claim for reimbursement of repatriation expenses was likewise denied, since Article 19(G) of
POEA Memorandum Circular No. 55, Series of 1996 allows the employer, in case the seafarer voluntarily preterminates his contract, to assume the repatriation cost of the seafarer on compassionate grounds.43
The Decision of the NLRC
The NLRC, on 28 October 2002, dismissed De Gracia, et al.s appeal for lack of merit and affirmed the Labor
Arbiters decision.44 The NLRC considered De Gracia, et al.s claim for home allotment for December 1998
unsubstantiated, since home allotment is a benefit which De Gracia, et al. must prove their entitlement to.45
The NLRC also denied the claim for illegal dismissal because De Gracia, et al. were not able to refute the telex
received by Skippers from the vessels master that De Gracia, et al. voluntarily pre-terminated their contracts
and demanded immediate repatriation due to their dissatisfaction with the ships operations.46
The Decision of the Court of Appeals
The CA, on 5 July 2006, granted De Gracia, et al.s petition and reversed the decisions of the Labor Arbiter
and NLRC, its dispositive portion reading as follows:
WHEREFORE, the instant petition for certiorari is GRANTED. The Resolution dated October 28, 2002 and the
Order dated August 31, 2004 rendered by the public respondent NLRC are ANNULLED and SET ASIDE. Let
another judgment be entered holding private respondents jointly and severally liable to petitioners for the
payment of:

1.
Unremitted home allotment pay for the month of December, 1998 or the equivalent thereof in Philippine
pesos:
a. De Gracia = US$900.00

4
b. Lata = US$600.00
c. Aprosta = US$600.00
2.
Salary for the unexpired portion of the employment contract or for 3 months for every year of the
unexpired term, whichever is less, or the equivalent thereof in Philippine pesos:
a. De Gracia = US$2,400.00
b. Lata = US$1,800.00
c. Aprosta = US$1,800.00
3.

Attorneys fees and litigation expenses equivalent to 10% of the total claims.

SO ORDERED.47
The CA declared the Labor Arbiter and NLRC to have committed grave abuse of discretion when they relied
upon the telex message of the captain of the vessel stating that De Gracia, et al. voluntarily pre-terminated
their contracts and demanded immediate repatriation.48 The telex message was a self-serving document that
does not satisfy the requirement of substantial evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify the conclusion that petitioners indeed voluntarily
demanded their immediate repatriation.49 For this reason, the repatriation of De Gracia, et al. prior to the
expiration of their contracts showed they were illegally dismissed from employment.50
In addition, the failure to remit home allotment pay was effectively admitted by Skippers, and prayed to be
offset from the repatriation expenses.51 Since there is no proof that De Gracia, et al. voluntarily pre-terminated
their contracts, the repatriation expenses are for the account of Skippers, and cannot be offset with the home
allotment pay for December 1998.52
No relief was granted to Doza due to lack of factual basis to support his petition.53 Attorneys fees equivalent
to 10% of the total claims was granted since it involved an action for recovery of wages or where the employee
was forced to litigate and incur expenses to protect his rights and interest.54
The Issues
Skippers, in its Petition for Review on Certiorari, assigned the following errors in the CA Decision:
a) The Court of Appeals seriously erred in not giving due credence to the masters telex message showing that
the respondents voluntarily requested to be repatriated.
b) The Court of Appeals seriously erred in finding petitioners liable to pay backwages and the alleged
unremitted home allotment pay despite the finding of the Labor Arbiter and the NLRC that the claims are
baseless.
c) The Court of Appeals seriously erred in awarding attorneys fees in favor of respondents despite its findings
that the facts attending in this case do not support the claim for moral and exemplary damages.55
The Ruling of this Court
We deny the petition and affirm the CA Decision, but modify the award.
For a workers dismissal to be considered valid, it must comply with both procedural and substantive due
process. The legality of the manner of dismissal constitutes procedural due process, while the legality of the
act of dismissal constitutes substantive due process.56

Procedural due process in dismissal cases consists of the twin requirements of notice and hearing. The
employer must furnish the employee with two written notices before the termination of employment can be
effected: (1) the first notice apprises the employee of the particular acts or omissions for which his dismissal is
sought; and (2) the second notice informs the employee of the employers decision to dismiss him. Before the
issuance of the second notice, the requirement of a hearing must be complied with by giving the worker an
opportunity to be heard. It is not necessary that an actual hearing be conducted.57
Substantive due process, on the other hand, requires that dismissal by the employer be made under a just or
authorized cause under Articles 282 to 284 of the Labor Code.

In this case, there was no written notice furnished to De Gracia, et al. regarding the cause of their dismissal.
Cosmoship furnished a written notice (telex) to Skippers, the local manning agency, claiming that De Gracia, et
al. were repatriated because the latter voluntarily pre-terminated their contracts. This telex was given credibility
and weight by the Labor Arbiter and NLRC in deciding that there was pre-termination of the employment
contract akin to resignation and no illegal dismissal. However, as correctly ruled by the CA, the telex
message is a biased and self-serving document that does not satisfy the requirement of substantial evidence.
If, indeed, De Gracia, et al. voluntarily pre-terminated their contracts, then De Gracia, et al. should have
submitted their written resignations.
Article 285 of the Labor Code recognizes termination by the employee of the employment contract by serving
written notice on the employer at least one (1) month in advance. Given that provision, the law contemplates
the requirement of a written notice of resignation. In the absence of a written resignation, it is safe to presume
that the employer terminated the seafarers. In addition, the telex message relied upon by the Labor Arbiter and
NLRC bore conflicting dates of 22 January 1998 and 22 January 1999, giving doubt to the veracity and
authenticity of the document. In 22 January 1998, De Gracia, et al. were not even employed yet by the foreign
principal. For these reasons, the dismissal of De Gracia, et al. was illegal.
On the issue of home allotment pay, Skippers effectively admitted non-remittance of home allotment pay for
the month of December 1998 in its Position Paper. Skippers sought the repatriation expenses to be offset with
the home allotment pay. However, since De Gracia, et al.s dismissal was illegal, their repatriation expenses
were for the account of Skippers and could not be offset with the home allotment pay.
Contrary to the claim of the Labor Arbiter and NLRC that the home allotment pay is in the nature of
extraordinary money where the burden of proof is shifted to the worker who must prove he is entitled to such
monetary benefit, Section 8 of POEA Memorandum Circular No. 55, series of 1996, states that the allotment
actually constitutes at least eighty percent (80%) of the seafarers salary:
The seafarer is required to make an allotment which is payable once a month to his designated allottee in the
Philippines through any authorized Philippine bank. The master/employer/agency shall provide the seafarer
with facilities to do so at no expense to the seafarer. The allotment shall be at least eighty percent (80%) of the
seafarers monthly basic salary including backwages, if any. (Emphasis supplied)
Paragraph 2 of the employment contracts of De Gracia, Lata and Aprosta incorporated the provisions of above
Memorandum Circular No. 55, series of 1996, in the employment contracts. Since said memorandum states
that home allotment of seafarers actually constitutes at least eighty percent (80%) of their salary, home
allotment pay is not in the nature of an extraordinary money or benefit, but should actually be considered as
salary which should be paid for services rendered. For this reason, such non-remittance of home allotment pay
should be considered as unpaid salaries, and Skippers shall be liable to pay the home allotment pay of De
Gracia, et al. for the month of December 1998.
Damages

As admitted by Skippers in its Position Paper, the home allotment pay for December 1998 due to De Gracia,
Lata and Aprosta is:

Seafarer

Home Allotment Pay

De Gracia

US$900.00

Aprosta

US$600.00

Lata

US$600.00

The monthly salary of De Gracia, according to his employment contract, is only US$800.00. However, since
Skippers admitted in its Position Paper a higher home allotment pay for De Gracia, we award the higher
amount of home allotment pay for De Gracia in the amount of US$900.00. Since the home allotment pay can
be considered as unpaid salaries, the peso equivalent of the dollar amount should be computed using the
prevailing rate at the time of termination since it was due and demandable to De Gracia, et al. on 28 January
1999.
Section 10 of Republic Act No. 8042 (Migrant Workers Act) provides for money claims in cases of unjust
termination of employment contracts:
In case of termination of overseas employment without just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve
percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less.

The Migrant Workers Act provides that salaries for the unexpired portion of the employent contract or three (3)
months for every year of the unexpired term, whichever is less, shall be awarded to the overseas Filipino
worker, in cases of illegal dismissal. However, in 24 March 2009, Serrano v. Gallant Maritime Services and
Marlow Navigation Co. Inc.,58 the Court, in an En Banc Decision, declared unconstitutional the clause or for
three months for every year of the unexpired term, whichever is less and awarded the entire unexpired portion
of the employment contract to the overseas Filipino worker.
On 8 March 2010, however, Section 7 of Republic Act No. 10022 (RA 10022) amended Section 10 of the
Migrant Workers Act, and once again reiterated the provision of awarding the unexpired portion of the
employent contract or three (3) months for every year of the unexpired term, whichever is less.
Nevertheless, since the termination occurred on January 1999 before the passage of the amendatory RA
10022, we shall apply RA 8042, as unamended, without touching on the constitutionality of Section 7 of RA
10022.
The declaration in March 2009 of the unconstitutionality of the clause or for three months for every year of the
unexpired term, whichever is less in RA 8042 shall be given retroactive effect to the termination that occurred
in January 1999 because an unconstitutional clause in the law confers no rights, imposes no duties and affords
no protection. The unconstitutional provision is inoperative, as if it was not passed into law at all.59
As such, we compute the claims as follows:

Seafarer

Contract
Term

Contract
Date

Repatriation Date

Unexpired
Term

Monthly
Salary

Total Claims

De Gracia

10 months

17 Jul. 1998

28 Jan. 1999

3 months &
20 days

US$800

US$2933.34

Lata

12 months

17 Apr. 1998

28 Jan. 1999

2 months &
20 days

US$600

US$1600

Aprosta

12 months

17 Apr. 1998

28 Jan. 1999

2 months &
20 days

US$600

US$1600

Given the above computation, we modify the CAs imposition of award, and grant to De Gracia, et al. salaries
representing the unexpired portion of their contracts, instead of salaries for three (3) months.
Article 2219 of the Civil Code of the Philippines provides for recovery of moral damages in certain cases:

Art. 2219. Moral damages may be recovered in the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also
recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of
this article, in the order named.
Article 2229 of the Civil Code, on the other hand, provides for recovery of exemplary damages:
Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good,
in addition to the moral, temperate, liquidated or compensatory damages.
In this case, we agree with the CA in not awarding moral and exemplary damages for lack of factual basis.
Lastly, Article 2208 of the Civil Code provides for recovery of attorneys fees and expenses of litigation:
Art. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than judicial costs,
cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid,
just and demandable claim;

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(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmens compensation and employers liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorneys fees and expenses of
litigation should be recovered.
In all cases, the attorneys fees and expenses of litigation must be reasonable.
Article 111 of the Labor Code provides for a maximum award of attorneys fees in cases of recovery of wages:
Art. 111. Attorneys fees.
a.
In cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees
equivalent to ten percent of the amount of wages recovered.
b.
It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for
the recovery of wages, attorneys fees which exceed ten percent of the amount of wages recovered.
Since De Gracia, et al. had to secure the services of the lawyer to recover their unpaid salaries and protect
their interest, we agree with the CAs imposition of attorneys fees in the amount of ten percent (10%) of the
total claims.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals dated 5 July 2006 with MODIFICATION.
Petitioners Skippers United Pacific, Inc. and Skippers Maritime Services Inc., Ltd. are jointly and severally
liable for payment of the following:
1) Unremitted home allotment pay for the month of December 1998 in its equivalent rate in Philippine Pesos at
the time of termination on 28 January 1999:
a. De Gracia = US$900.00
b. Lata = US$600.00
c. Aprosta = US$600.00
2) Salary for the unexpired portion of the employment contract or its current equivalent in Philippine Pesos:
a. De Gracia = US$2,933.34 b. Lata = US$1,600.00 c. Aprosta = US$1,600.00
3) Attorneys fees and litigation expenses equivalent to 10% of the total claims.

CORONA V UNITED HARBOR PILOTS

EN BANC [G.R. No. 111953. December 12, 1997]
HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs, HON. JESUS B.
GARCIA, in his capacity as Acting Secretary, Department of Transportation and Communications, and
ROGELIO A. DAYAN, in his capacity as General Manager of Philippine Ports Authority, petitioners, vs.
UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION,
respondents.
DECISION
ROMERO, J.:
In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the term of appointment of harbor pilots
to one year subject to yearly renewal or cancellation, did the Philippine Ports Authority (PPA) violate
respondents right to exercise their profession and their right to due process of law?
The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On December 23, 1975,
Presidential Decree No. 857 was issued revising the PPAs charter. Pursuant to its power of control,
regulation, and supervision of pilots and the pilotage profession, [1] the PPA promulgated PPA-AO-03-85 [2]
on March 21, 1985, which embodied the Rules and Regulations Governing Pilotage Services, the Conduct of
Pilots and Pilotage Fees in Philippine Ports. These rules mandate, inter alia, that aspiring pilots must be
holders of pilot licenses [3] and must train as probationary pilots in outports for three months and in the Port of
Manila for four months. It is only after they have achieved satisfactory performance [4] that they are given
permanent and regular appointments by the PPA itself [5] to exercise harbor pilotage until they reach the age
of 70, unless sooner removed by reason of mental or physical unfitness by the PPA General Manager. [6]
Harbor pilots in every harbor district are further required to organize themselves into pilot associations which
would make available such equipment as may be required by the PPA for effective pilotage services. In view
of this mandate, pilot associations invested in floating, communications, and office equipment. In fact, every
new pilot appointed by the PPA automatically becomes a member of a pilot association and is required to pay
a proportionate equivalent equity or capital before being allowed to assume his duties, as reimbursement to the
association concerned of the amount it paid to his predecessor.
Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92 [7] on July 15, 1992,
whose avowed policy was to instill effective discipline and thereby afford better protection to the port users
through the improvement of pilotage services. This was implemented by providing therein that all existing
regular appointments which have been previously issued either by the Bureau of Customs or the PPA shall
remain valid up to 31 December 1992 only and that all appointments to harbor pilot positions in all pilotage
districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to yearly renewal or
cancellation by the Authority after conduct of a rigid evaluation of performance.
On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots Association, through
Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and
Communication, but they were informed by then DOTC Secretary Jesus B. Garcia that the matter of
reviewing, recalling or annulling PPAs administrative issuances lies exclusively with its Board of Directors as
its governing body.
Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 08-92 [8] which laid down the criteria
or factors to be considered in the reappointment of harbor pilots, viz.: (1) Qualifying Factors: [9] safety record
and physical/mental medical exam report and (2) Criteria for Evaluation: [10] promptness in servicing vessels,

10
compliance with PPA Pilotage Guidelines, number of years as a harbor pilot, average GRT of vessels serviced
as pilot, awards/commendations as harbor pilot, and age.
Respondents reiterated their request for the suspension of the implementation of PPA-AO No. 04-92, but
Secretary Garcia insisted on his position that the matter was within the jurisdiction of the Board of Directors of
the PPA. Compas appealed this ruling to the Office of the President (OP), reiterating his arguments before the
DOTC.

On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the implementation of
PPA-AO No. 04-92. In its answer, the PPA countered that said administrative order was issued in the exercise
of its administrative control and supervision over harbor pilots under Section 6-a (viii), Article IV of P. D. No.
857, as amended, and it, along with its implementing guidelines, was intended to restore order in the ports and
to improve the quality of port services.
On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs Renato C. Corona,
dismissed the appeal/petition and lifted the restraining order issued earlier. [11] He concluded that PPA-AO
No. 04-92 applied to all harbor pilots and, for all intents and purposes, was not the act of Dayan, but of the
PPA, which was merely implementing Section 6 of P.D. No. 857, mandating it to control, regulate and
supervise pilotage and conduct of pilots in any port district.
On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing memoranda and
circulars, Secretary Corona opined that:
The exercise of ones profession falls within the constitutional guarantee against wrongful deprivation of, or
interference with, property rights without due process. In the limited context of this case, PPA-AO 04-92 does
not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those
affected thereby. As may be noted, the issuance aims no more than to improve pilotage services by limiting
the appointment to harbor pilot positions to one year, subject to renewal or cancellation after a rigid evaluation
of the appointees performance.
PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession in PPAs
jurisdictional area. (Emphasis supplied)
Finally, as regards the alleged absence of ample prior consultation before the issuance of the administrative
order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires the PPA to consult with
relevant Government agencies. Since the PPA Board of Directors is composed of the Secretaries of the
DOTC, the Department of Public Works and Highways, the Department of Finance, and the Department of
Environment and Natural Resources, as well as the Director-General of the National Economic Development
Agency, the Administrator of the Maritime Industry Authority (MARINA), and the private sector representative
who, due to his knowledge and expertise, was appointed by the President to the Board, he concluded that the
law has been sufficiently complied with by the PPA in issuing the assailed administrative order.
Consequently, respondents filed a petition for certiorari, prohibition and injunction with prayer for the issuance
of a temporary restraining order and damages, before Branch 6 of the Regional Trial Court of Manila, which
was docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court rendered the following
judgment: [12]
WHEREFORE, for all the foregoing, this Court hereby rules that:

11
1. Respondents (herein petitioners) have acted in excess of jurisdiction and with grave abuse of discretion and
in a capricious, whimsical and arbitrary manner in promulgating PPA Administrative Order 04-92 including all
its implementing Memoranda, Circulars and Orders;
2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null and void;
3. The respondents are permanently enjoined from implementing PPA Administrative Order 04-92 and its
implementing Memoranda, Circulars and Orders.
No costs.
SO ORDERED.

The court a quo pointed out that the Bureau of Customs, the precursor of the PPA, recognized pilotage as a
profession and, therefore, a property right under Callanta v. Carnation Philippines, Inc. [13] Thus, abbreviating
the term within which that privilege may be exercised would be an interference with the property rights of the
harbor pilots. Consequently, any withdrawal or alteration of such property right must be strictly made in
accordance with the constitutional mandate of due process of law. This was apparently not followed by the
PPA when it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents allegedly
learned about it only after its publication in the newspapers. From this decision, petitioners elevated their case
to this Court on certiorari.
After carefully examining the records and deliberating on the arguments of the parties, the Court is convinced
that PPA-AO No. 04-92 was issued in stark disregard of respondents right against deprivation of property
without due process of law. Consequently, the instant petition must be denied.
Section 1 of the Bill of Rights lays down what is known as the due process clause of the Constitution, viz.:
SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, x x x.
In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation
and that such deprivation is done without proper observance of due process. When one speaks of due
process of law, however, a distinction must be made between matters of procedure and matters of substance.
In essence, procedural due process refers to the method or manner by which the law is enforced, while
substantive due process requires that the law itself, not merely the procedures by which the law would be
enforced, is fair, reasonable, and just. [14] PPA-AO No. 04-92 must be examined in light of this distinction.
Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92 allegedly
because no hearing was conducted whereby relevant government agencies and the pilots themselves could
ventilate their views. They are obviously referring to the procedural aspect of the enactment. Fortunately, the
Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v.
Hon. Exevea, [15] where it declared that (a)s long as a party was given the opportunity to defend his interests
in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is
the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is
granted an opportunity to seek reconsideration of the action or ruling complained of.
In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times [16] before the matter
was finally elevated to this Tribunal. Their arguments on this score, however, fail to persuade. While
respondents emphasize that the Philippine Coast Guard, which issues the licenses of pilots after

12
administering the pilots examinations, was not consulted, [17] the facts show that the MARINA, which took
over the licensing function of the Philippine Coast Guard, was duly represented in the Board of Directors of the
PPA. Thus, petitioners correctly argued that, there being no matters of naval defense involved in the issuance
of the administrative order, the Philippine Coast Guard need not be consulted.[18]
Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the
administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural
due process, are essential only when an administrative body exercises its quasi-judicial function. In the
performance of its executive or legislative functions, such as issuing rules and regulations, an administrative
body need not comply with the requirements of notice and hearing.[19]
Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by
pilots is a settled issue. Respondents aver that said right has become vested and can only be withdrawn or
shortened by observing the constitutional mandate of due process of law. Their argument has thus shifted
from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by
the organic law.
There is no dispute that pilotage as a profession has taken on the nature of a property right. Even petitioner
Corona recognized this when he stated in his March 17, 1993, decision that (t)he exercise of ones profession
falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights
without due process. [20] He merely expressed the opinion that (i)n the limited context of this case, PPA-AO
04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of
those affected thereby, and that PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor
pilots of their profession. As will be presently demonstrated, such supposition is gravely erroneous and tends
to perpetuate an administrative order which is not only unreasonable but also superfluous.
Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is the
granting of license especially to practice a profession. It is also the system of granting licenses (as for
professional practice) in accordance with established standards. [21] A license is a right or permission granted
by some competent authority to carry on a business or do an act which, without such license, would be illegal.
[22]
Before harbor pilots can earn a license to practice their profession, they literally have to pass through the
proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and
practice. Thus, the court a quo observed:
Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny, that here (sic)
in this jurisdiction, before a person can be a harbor pilot, he must pass five (5) government professional
examinations, namely, (1) For Third Mate and after which he must work, train and practice on board a vessel
for at least a year; (2) For Second Mate and after which he must work, train and practice for at least a year; (3)
For Chief Mate and after which he must work, train and practice for at least a year; (4) For a Master Mariner
and after which he must work as Captain of vessels for at least two (2) years to qualify for an examination to be
a pilot; and finally, of course, that given for pilots.
Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire
at the age 70 years. This is a vested right. Under the terms of PPA-AO No. 04-92, (a)ll existing regular
appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up
to 31 December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall,

13
henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the
Authority after conduct of a rigid evaluation of performance.
It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession
before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing
five examinations and undergoing years of on-the-job training, they would have a license which they could use
until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new
issuance, they have to contend with an annual cancellation of their license which can be temporary or
permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are
suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their
license is now dependent on a rigid evaluation of performance which is conducted only after the license has
already been cancelled. Hence, the use of the term renewal. It is this pre-evaluation cancellation which
primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation
of property without due process of law.
The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85,
which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a surplusage
[23] and, therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the
Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine
Ports. It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and
removal of harbor pilots - matters which are duplicated in PPA-AO No. 04-92 and its implementing
memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down.
Finally, respondents insinuation that then PPA General Manager Dayan was responsible for the issuance of
the questioned administrative order may have some factual basis; after all, power and authority were vested in
his office to propose rules and regulations. The trial courts finding of animosity between him and private
respondents might likewise have a grain of truth. Yet the number of cases filed in court between private
respondents and Dayan, including cases which have reached this Court, cannot certainly be considered the
primordial reason for the issuance of PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan
should be presumed to have acted in accordance with law and the best of professional motives. In any event,
his actions are certainly always subject to scrutiny by higher administrative authorities.
WHEREFORE, the instant petition is hereby DISMISSED and the assailed decision of the court a quo dated
September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to costs.

LUMIQUED V EXEVEA
EN BANC [G.R. No. 117565. November 18, 1997]
ARSENIO P. LUMIQUED (deceased), Regional Director, DAR CAR, Represented by his Heirs, Francisca A.
Lumiqued, May A. Lumiqued, Arlene A. Lumiqued and Richard A. Lumiqued, petitioners, vs. Honorable
APOLINIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL Members of Investigating
Committee, created by DOJ Order No. 145 on May 30, 1992; HON. FRANKLIN M. DRILON, SECRETARY OF
JUSTICE, HON. ANTONIO T. CARPIO, CHIEF Presidential Legal Adviser/Counsel; and HON. LEONARDO A.
QUISIMBING, Senior Deputy Executive Secretary of the Office of the President, and JEANNETTE OBARZAMUDIO, Private Respondent, respondents.
DECISION
ROMERO, J.:
Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry?

14
Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian Reform Cordillera
Autonomous Region (DAR-CAR) until President Fidel V. Ramos dismissed him from that position pursuant to
Administrative Order No. 52 dated May 12, 1993. In view of Lumiqueds death on May 19, 1994, his heirs
instituted this petition for certiorari and mandamus, questioning such order.
The dismissal was the aftermath of three complaints filed by DAR-CAR Regional Cashier and private
respondent Jeannette Obar-Zamudio with the Board of Discipline of the DAR. The first affidavit-complaint
dated November 16, 1989,[1] charged Lumiqued with malversation through falsification of official documents.
From May to September 1989, Lumiqued allegedly committed at least 93 counts of falsification by padding
gasoline receipts. He even submitted a vulcanizing shop receipt worth P550.00 for gasoline bought from the
shop, and another receipt for P660.00 for a single vulcanizing job. With the use of falsified receipts, Lumiqued
claimed and was reimbursed the sum of P44,172.46. Private respondent added that Lumiqued seldom made
field trips and preferred to stay in the office, making it impossible for him to consume the nearly 120 liters of
gasoline he claimed everyday.
In her second affidavit-complaint dated November 22, 1989,[2] private respondent accused Lumiqued with
violation of Commission on Audit (COA) rules and regulations, alleging that during the months of April, May,
July, August, September and October, 1989, he made unliquidated cash advances in the total amount of
P116,000.00. Lumiqued purportedly defrauded the government by deliberately concealing his unliquidated
cash advances through the falsification of accounting entries in order not to reflect on `Cash advances of other
officials under code 8-70-600 of accounting rules.
The third affidavit-complaint dated December 15, 1989,[3] charged Lumiqued with oppression and harassment.
According to private respondent, her two previous complaints prompted Lumiqued to retaliate by relieving her
from her post as Regional Cashier without just cause.
The three affidavit-complaints were referred in due course to the Department of Justice (DOJ) for appropriate
action. On May 20, 1992, Acting Justice Secretary Eduardo G. Montenegro issued Department Order No. 145
creating a committee to investigate the complaints against Lumiqued. The order appointed Regional State
Prosecutor Apolinario Exevea as committee chairman with City Prosecutor Erdolfo Balajadia and Provincial
Prosecutor Felix Cabading as members. They were mandated to conduct an investigation within thirty days
from receipt of the order, and to submit their report and recommendation within fifteen days from its conclusion.
The investigating committee accordingly issued a subpoena directing Lumiqued to submit his counter-affidavit
on or before June 17, 1992. Lumiqued, however, filed instead an urgent motion to defer submission of his
counter-affidavit pending actual receipt of two of private respondents complaints. The committee granted the
motion and gave him a five-day extension.
In his counter-affidavit dated June 23, 1992,[4] Lumiqued alleged, inter alia, that the cases were filed against
him to extort money from innocent public servants like him, and were initiated by private respondent in
connivance with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He claimed that the
apparent weakness of the charge was bolstered by private respondents execution of an affidavit of
desistance.[5]
Lumiqued admitted that his average daily gasoline consumption was 108.45 liters. He submitted, however, that
such consumption was warranted as it was the aggregate consumption of the five service vehicles issued
under his name and intended for the use of the Office of the Regional Director of the DAR. He added that the
receipts which were issued beyond his region were made in the course of his travels to Ifugao Province, the
DAR Central Office in Diliman, Quezon City, and Laguna, where he attended a seminar. Because these

15
receipts were merely turned over to him by drivers for reimbursement, it was not his obligation but that of
auditors and accountants to determine whether they were falsified. He affixed his signature on the receipts only
to signify that the same were validly issued by the establishments concerned in order that official transactions
of the DAR-CAR could be carried out.
Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said that he and his companions were
cruising along Santa Fe, Nueva Vizcaya on their way to Ifugao when their service vehicle ran out of gas. Since
it was almost midnight, they sought the help of the owner of a vulcanizing shop who readily furnished them with
the gasoline they needed. The vulcanizing shop issued its own receipt so that they could reimburse the cost of
the gasoline. Domingo Lucero, the owner of said vulcanizing shop, corroborated this explanation in an affidavit
dated June 25, 1990.[6] With respect to the accusation that he sought reimbursement in the amount of
P660.00 for one vulcanizing job, Lumiqued submitted that the amount was actually only P6.60. Any error
committed in posting the amount in the books of the Regional Office was not his personal error or
accountability.
To refute private respondents allegation that he violated COA rules and regulations in incurring unliquidated
cash advances in the amount of P116,000.00, Lumiqued presented a certification[7] of DAR-CAR
Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record as of
December 31, 1989.
In disputing the charges of oppression and harassment against him, Lumiqued contended that private
respondent was not terminated from the service but was merely relieved of her duties due to her prolonged
absences. While admitting that private respondent filed the required applications for leave of absence,
Lumiqued claimed that the exigency of the service necessitated disapproval of her application for leave of
absence. He allegedly rejected her second application for leave of absence in view of her failure to file the
same immediately with the head office or upon her return to work. He also asserted that no medical certificate
supported her application for leave of absence.
In the same counter-affidavit, Lumiqued also claimed that private respondent was corrupt and dishonest
because a COA examination revealed that her cash accountabilities from June 22 to November 23, 1989, were
short by P30,406.87. Although private respondent immediately returned the amount on January 18, 1990, the
day following the completion of the cash examination, Lumiqued claimed that she should be relieved from her
duties and assigned to jobs that would not require handling of cash and money matters.
Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not assisted
by counsel. On the second hearing date, he moved for its resetting to July 17, 1992, to enable him to employ
the services of counsel. The committee granted the motion, but neither Lumiqued nor his counsel appeared on
the date he himself had chosen, so the committee deemed the case submitted for resolution.
On August 12, 1992, Lumiqued filed an urgent motion for additional hearing,[8] alleging that he suffered a
stroke on July 10, 1992. The motion was forwarded to the Office of the State Prosecutor apparently because
the investigation had already been terminated. In an order dated September 7, 1992,[9] State Prosecutor Zoila
C. Montero denied the motion, viz:
The medical certificate given show(s) that respondent was discharged from the Sacred Heart Hospital on July
17, 1992, the date of the hearing, which date was upon the request of respondent (Lumiqued). The records do
not disclose that respondent advised the Investigating committee of his confinement and inability to attend
despite his discharge, either by himself or thru counsel. The records likewise do not show that efforts were

16
exerted to notify the Committee of respondents condition on any reasonable date after July 17, 1992. It is
herein noted that as early as June 23, 1992, respondent was already being assisted by counsel.

Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency, completeness and
thoroughness of the counter-affidavit together with the documentary evidence annexed thereto, such that a
judicious determination of the case based on the pleadings submitted is already possible.
Moreover, considering that the complaint-affidavit was filed as far back as November 16, 1989 yet, justice can
not be delayed much longer.
Following the conclusion of the hearings, the investigating committee rendered a report dated July 31,
1992,[10] finding Lumiqued liable for all the charges against him. It made the following findings:
After a thorough evaluation of the evidences (sic) submitted by the parties, this committee finds the evidence
submitted by the complainant sufficient to establish the guilt of the respondent for Gross Dishonesty and Grave
Misconduct.
That most of the gasoline receipts used by the respondent in claiming for the reimbursement of his gasoline
expenses were falsified is clearly established by the 15 Certified Xerox Copies of the duplicate receipts
(Annexes G-1 to G-15) and the certifications issued by the different gasoline stations where the respondent
purchased gasoline. Annexes `G-1 to `G-15 show that the actual average purchase made by the respondent
is about 8.46 liters only at a purchase price of P50.00, in contrast to the receipts used by the respondent which
reflects an average of 108.45 liters at a purchase price of P550.00. Here, the greed of the respondent is made
manifest by his act of claiming reimbursements of more than 10 times the value of what he actually spends.
While only 15 of the gasoline receipts were ascertained to have been falsified, the motive, the pattern and the
scheme employed by the respondent in defrauding the government has, nevertheless, been established.
That the gasoline receipts have been falsified was not rebutted by the respondent. In fact, he had in effect
admitted that he had been claiming for the payment of an average consumption of 108.45 liters/day by
justifying that this was being used by the 4 vehicles issued to his office. Besides he also admitted having
signed the receipts.
Respondents act in defrauding the government of a considerable sum of money by falsifying receipts
constitutes not only Dishonesty of a high degree but also a criminal offense for Malversation through
Falsification of Official Documents.
This committee likewise finds that the respondent have (sic) unliquidated cash advances in the year 1989
which is in violation of established office and auditing rules. His cash advances totalling to about P116,000.00
were properly documented. The requests for obligation of allotments and the vouchers covering the amounts
were all signed by him. The mere certification issued by the Administrative Officer of the DAR-CAR cannot
therefore rebut these concrete evidences (sic).
On the third complaint, this committee likewise believes that the respondents act in relieving the complainant
of her functions as a Regional Cashier on December 1, 1989 was an act of harassment. It is noted that this
was done barely two weeks after the complainant filed charges against her (sic). The recommendation of Jose
G. Medina of the Commission on Audit came only on May 11, 1990 or almost six months after the respondents
order relieving the complainant was issued. His act in harassing a subordinate employee in retaliation to a
complaint she filed constitute(s) Gross Misconduct on the part of the respondent who is a head of office.

17
The affidavits of Joseph In-uyay and Josefina Guting are of no help to the respondent. In fact, this only show(s)
that he is capable of giving bribes if only to have the cases against him dismissed. He could not have given a
certain Benigno Aquino III the sum of P10,000.00 for any other purpose.
Accordingly, the investigating committee recommended Lumiqueds dismissal or removal from office, without
prejudice to the filing of the appropriate criminal charges against him.
Acting on the report and recommendation, former Justice Secretary Franklin M. Drilon adopted the same in his
Memorandum to President Fidel V. Ramos dated October 22, 1992. He added that the filing of the affidavit of
desistance[11] would not prevent the issuance of a resolution on the matter considering that what was at stake
was not only the violation of complainants (herein private respondents) personal rights but also the
competence and fitness of the respondent (Lumiqued) to remain in public office. He opined that, in fact, the
evidence on record could call for a punitive action against the respondent on the initiative of the DAR.
On December 17, 1992, Lumiqued filed a motion for reconsideration of the findings of the Committee with the
DOJ.[12] Undersecretary Ramon S. Esguerra indorsed the motion to the investigating committee.[13] In a letter
dated April 1, 1993, the three-member investigating committee informed Undersecretary Esguerra that the
committee had no more authority to act on the same (motion for reconsideration) considering that the matter
has already been forwarded to the Office of the President and that their authority under Department Order No.
145 ceased when they transmitted their report to the DOJ.[14] Concurring with this view, Undersecretary
Esguerra informed Lumiqued that the investigating committee could no longer act on his motion for
reconsideration. He added that the motion was also prematurely filed because the Office of the President (OP)
had yet to act on Secretary Drilons recommendation.[15]
On May 12, 1993, President Fidel V. Ramos himself issued Administrative Order No. 52 (A.O. No. 52),[16]
finding Lumiqued administratively liable for dishonesty in the alteration of fifteen gasoline receipts, and
dismissing him from the service, with forfeiture of his retirement and other benefits. Thus:
That the receipts were merely turned over to him by his drivers and that the auditor and accountant of the
DAR-CAR should be the ones to be held liable is untenable. The receipts in question were signed by
respondent for the purpose of attesting that those receipts were validly issued by the commercial
establishments and were properly disbursed and used in the official business for which it was intended.
This Office is not about to shift the blame for all these to the drivers employed by the DAR-CAR as respondent
would want us to do.
The OP, however, found that the charges of oppression and harassment, as well as that of incurring
unliquidated cash advances, were not satisfactorily established.
In a petition for appeal[17] addressed to President Ramos, Lumiqued prayed that A.O. No. 52 be
reconsidered and that he be reinstated to his former position with all the benefits accorded to him by law and
existing rules and regulations. This petition was basically premised on the affidavit dated May 27, 1993, of a
certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to having authored the
falsification of gasoline receipts and attested to petitioner Lumiqueds being an honest man who had no
premonition that the receipts he (Dwight) turned over to him were altered.[18]
Treating the petition for appeal as a motion for the reconsideration of A.O. No. 52, the OP, through Senior
Deputy Executive Secretary Leonardo A. Quisumbing, denied the same on August 31, 1993.

18
Undaunted, Lumiqued filed a second motion for reconsideration, alleging, among other things, that he was
denied the constitutional right to counsel during the hearing.[19] On May 19, 1994,[20] however, before his
motion could be resolved, Lumiqued died. On September 28, 1994,[21] Secretary Quisumbing denied the
second motion for reconsideration for lack of merit.
Hence, the instant petition for certiorari and mandamus praying for the reversal of the Report and
Recommendation of the Investigating Committee, the October 22, 1992, Memorandum of then Justice
Secretary Drilon, A.O. No. 52 issued by President Ramos, and the orders of Secretary Quisumbing. In a
nutshell, it prays for the payment of retirement benefits and other benefits accorded to deceased Arsenio
Lumiqued by law, payable to his heirs; and the backwages from the period he was dismissed from service up
to the time of his death on May 19, 1994.[22]
Petitioners fault the investigating committee for its failure to inform Lumiqued of his right to counsel during the
hearing. They maintain that his right to counsel could not be waived unless the waiver was in writing and in the
presence of counsel. They assert that the committee should have suspended the hearing and granted
Lumiqued a reasonable time within which to secure a counsel of his own. If suspension was not possible, the
committee should have appointed a counsel de oficio to assist him.
These arguments are untenable and misplaced. The right to counsel, which cannot be waived unless the
waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial
investigation.[23] It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and,
with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in
criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was
not accused of any crime in the proceedings below. The investigation conducted by the committee created by
Department Order No. 145 was for the purpose of determining if he could be held administratively liable under the
law for the complaints filed against him. The order issued by Acting Secretary of Justice Montenegro states thus:
In the interest of the public service and pursuant to the provisions of existing laws, a Committee to conduct the
formal investigation of the administrative complaint for oppression, dishonesty, disgraceful and immoral conduct,
being notoriously undesirable and conduct prejudicial to the best interest of the service against Mr. ARSENIO P.
LUMIQUED, Regional Director, Department of Agrarian Reform, Cordillera Autonomous Region, is hereby created x
x x.[24]
As such, the hearing conducted by the investigating committee was not part of a criminal prosecution. This was
even made more pronounced when, after finding Lumiqued administratively liable, it hinted at the filing of criminal
case for malversation through falsification of public documents in its report and recommendation.
Petitioners misconception on the nature of the investigation [25] conducted against Lumiqued appears to have been
engendered by the fact that the DOJ conducted it. While it is true that under the Administrative Code of 1987, the
DOJ shall administer the criminal justice system in accordance with the accepted processes thereof consisting in
the investigation of the crimes, prosecution of offenders and administration of the correctional system,[26]
conducting criminal investigations is not its sole function. By its power to perform such other functions as may be
provided by law, [27] prosecutors may be called upon to conduct administrative investigations. Accordingly, the
investigating committee created by Department Order No. 145 was duty-bound to conduct the administrative
investigation in accordance with the rules therefor.
While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact
remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondents capacity to represent himself and no duty rests on
such a body to furnish the person being investigated with counsel.[28] In an administrative proceeding such as the
one that transpired below, a respondent (such as Lumiqued) has the option of engaging the services of counsel or

19
not. This is clear from the provisions of Section 32, Article VII of Republic Act No. 2260[29] (otherwise known as the
Civil Service Act) and Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V
of Executive Order No. 292[30] (otherwise known as the Administrative Code of 1987). Excerpts from the transcript
of stenographic notes of the hearings attended by Lumiqued[31] clearly show that he was confident of his capacity
and so opted to represent himself. Thus, the right to counsel is not imperative in administrative investigations
because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures
against erring public officers and employees, with the purpose of maintaining the dignity of government service.
Furthermore, petitioners reliance on Resolution No. 94-0521 of the Civil Service Commission on the Uniform
Procedure in the Conduct of Administrative Investigation stating that a respondent in an administrative complaint
must be informed of his right to the assistance of a counsel of his choice,[32] is inappropriate. In the first place,
this resolution is applicable only to cases brought before the Civil Service Commission.[33] Secondly, said
resolution, which is dated January 25, 1994, took effect fifteen days following its publication in a newspaper of
general circulation,[34] much later than the July 1992 hearings of the investigating committee created by
Department Order No. 145. Thirdly, the same committee was not remiss in the matter of reminding Lumiqued of his
right to counsel. Thus at the July 3, 1992, hearing, Lumiqued was repeatedly appraised of his option to secure
services of counsel:
RSP EXEVEA:
This is an administrative case against Director Lumiqued. Director Lumiqued is present. The complainant is
present, Janet Obar-Zamudio. Complainant has just been furnished with a copy of the counter-affidavit of the
respondent. Do you have a counsel, Director?
DIR. LUMIQUED:

I did not bring anybody, Sir, because when I went to see him, he told me, Sir, that he has already set a hearing,
morning and afternoon today.
RSP EXEVEA:
So, we will proceed with the hearing even without your counsel? You are willing to proceed with the hearing even
without your counsel?
DIR. LUMIQUED:
Yes, I am confident . . .
CP BALAJADIA:
You are confident that you will be able to represent yourself?
DIR. LUMIQUED:
That is my concern.[35] (Underscoring supplied)
In the course of private respondents damaging testimony, the investigating committee once again reminded
Lumiqued of his need for a counsel. Thus:
CP BALAJADIA:
Q. (To Director Lumiqued) You really wish to go through with this even without your counsel?

20
DIRECTOR LUMIQUED:
A. I think so, Sir.
CP BALAJADIA:
Let us make it of record that we have been warning you to proceed with the assistance of counsel but you said that
you can take care of yourself so we have no other alternative but to proceed.[36] (Underscoring supplied)
Thereafter, the following colloquies transpired:
CP BALAJADIA:
We will suspend in the meantime that we are waiting for the supplemental affidavit you are going to present to us.
Do you have any request from the panel of investigators, Director Lumiqued?
DIRECTOR LUMIQUED:
I was not able to bring a lawyer since the lawyer I requested to assist me and was the one who prepared my
counter-affidavit is already engaged for a hearing and according to him he is engaged for the whole month of July.
RSP EXEVEA:
We cannot wait . . .
CP BALAJADIA:
Why dont you engage the services of another counsel. The charges against you are quite serious. We are not
saying you are guilty already. We are just apprehensive that you will go through this investigation without a counsel.
We would like you to be protected legally in the course of this investigation. Why dont you get the services of
another counsel. There are plenty here in Baguio...
DIRECTOR LUMIQUED:
I will try to see, Sir . . .
CP BALAJADIA:
Please select your date now, we are only given one month to finish the investigation, Director Lumiqued.
RSP EXEVEA:
We will not entertain any postponement. With or without counsel, we will proceed.
CP BALAJADIA:
Madam Witness, will you please submit the document which we asked for and Director Lumiqued, if you have other
witnesses, please bring them but reduce their testimonies in affidavit form so that we can expedite with the
proceedings.[37]
At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the services of counsel. Pertinent excerpts
from said hearing follow:
FISCAL BALAJADIA:
I notice also Mr. Chairman that the respondent is not being represented by a counsel. The last time he was asked to
invite his lawyer in this investigation. May we know if he has a lawyer to represent him in this investigation?

21

DIR. LUMIQUED:
There is none Sir because when I went to my lawyer, he told me that he had set a case also at 9:30 in the other
court and he told me if there is a possibility of having this case postponed anytime next week, probably Wednesday
so we will have good time (sic) of presenting the affidavit.
FISCAL BALAJADIA:
Are you moving for a postponement Director? May I throw this to the panel. The charges in this case are quite
serious and he should be given a chance to the assistance of a counsel/lawyer.
RSP EXEVEA:
And is (sic) appearing that the supplemental-affidavit has been furnished him only now and this has several
documents attached to it so I think we could grant him one last postponement considering that he has already asked
for an extension.
DIR. LUMIQUED:
Furthermore Sir, I am now being bothered by my heart ailment.[38]
The hearing was reset to July 17, 1992, the date when Lumiqued was released from the hospital. Prior to said date,
however, Lumiqued did not inform the committee of his confinement. Consequently, because the hearing could not
push through on said date, and Lumiqued had already submitted his counter-affidavit, the committee decided to
wind up the proceedings. This did not mean, however, that Lumiqued was short-changed in his right to due process.
Lumiqued, a Regional Director of a major department in the executive branch of the government, graduated from
the University of the Philippines (Los Baos) with the degree of Bachelor of Science major in Agriculture, was a
recipient of various scholarships and grants, and underwent training seminars both here and abroad.[39] Hence, he
could have defended himself if need be, without the help of counsel, if truth were on his side. This, apparently, was
the thought he entertained during the hearings he was able to attend. In his statement, That is my concern, one
could detect that it had been uttered testily, if not exasperatedly, because of the doubt or skepticism implicit in the
question, You are confident that you will be able to represent yourself? despite his having positively asserted
earlier, Yes, I am confident. He was obviously convinced that he could ably represent himself. Beyond repeatedly
reminding him that he could avail himself of counsel and as often receiving the reply that he is confident of his ability
to defend himself, the investigating committee could not do more. One can lead a horse to water but cannot make
him drink.
The right to counsel is not indispensable to due process unless required by the Constitution or the law. In Nera v.
Auditor General,[40] the Court said:
x x x. There is nothing in the Constitution that says that a party in a non-criminal proceeding is entitled to be
represented by counsel and that, without such representation, he shall not be bound by such proceedings. The
assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due
process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The
ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side.
In administrative proceedings, the essence of due process is simply the opportunity to explain ones side. One may
be heard, not solely by verbal presentation but also, and perhaps even much more creditably as it is more
practicable than oral arguments, through pleadings.[41] An actual hearing is not always an indispensable aspect of
due process.[42] As long as a party was given the opportunity to defend his interests in due course, he cannot be
said to have been denied due process of law, for this opportunity to be heard is the very essence of due
process.[43] Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek
reconsideration of the action or ruling complained of.[44] Lumiqueds appeal and his subsequent filing of motions for
reconsideration cured whatever irregularity attended the proceedings conducted by the committee.[45]

22
The constitutional provision on due process safeguards life, liberty and property.[46] In the early case of Cornejo v.
Gabriel and Provincial Board of Rizal [47] the Court held that a public office is not property within the sense of the
constitutional guarantee of due process of law for it is a public trust or agency. This jurisprudential pronoucement
has been enshrined in the 1987 Constitution under Article XI, Section 1 on accountability of public officers, as
follows:
Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and
lead modest lives.
When the dispute concerns ones constitutional right to security of tenure, however, public office is deemed
analogous to property in a limited sense; hence, the right to due process could rightfully be invoked. Nonetheless,
the right to security of tenure is not absolute. Of equal weight is the countervailing mandate of the Constitution that
all public officers and employees must serve with responsibility, integrity, loyalty and efficiency.[48] In this case, it
has been clearly shown that Lumiqued did not live up to this constitutional precept.
The committees findings pinning culpability for the charges of dishonesty and grave misconduct upon Lumiqued
were not, as shown above, fraught with procedural mischief. Its conclusions were founded on the evidence
presented and evaluated as facts. Well-settled in our jurisdiction is the doctrine that findings of fact of administrative
agencies must be respected as long as they are supported by substantial evidence, even if such evidence is not
overwhelming or preponderant.[49] The quantum of proof necessary for a finding of guilt in administrative cases is
only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.[50]
Consequently, the adoption by Secretary Drilon and the OP of the committees recommendation of dismissal may
not in any way be deemed tainted with arbitrariness amounting to grave abuse of discretion. Government officials
are presumed to perform their functions with regularity. Strong evidence is not necessary to rebut that
presumption,[51] which petitioners have not successfully disputed in the instant case.
Dishonesty is a grave offense penalized by dismissal under Section 23 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987. Under Section 9 of the same Rule, the penalty of
dismissal carries with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the
disqualification for reemployment in the government service. The instant petition, which is aimed primarily at the
payment of retirement benefits and other benefits plus backwages from the time of Lumiqueds dismissal until his
demise, must, therefore, fail.
WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED and Administrative
Order No. 52 of the Office of the President is AFFIRMED. Costs against petitioners.

SO ORDERED.

23

SECRETARY OF JUSTICE V LANTION

EN BANC [G.R. No. 139465. January 18, 2000]
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court
of Manila, Branch 25, and MARK B. JIMENEZ, respondents. Esmso
DECISION
MELO, J.:
The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of
government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of
Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizens basic
due process rights, or the governments ironclad duties under a treaty. The bugle sounds and this Court must
once again act as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing
the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree
is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of
crime both in the state where it was committed and the state where the criminal may have escaped; the
extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties
with other interested countries; and the need for rules to guide the executive department and the courts in the
proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the
Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic
of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US
Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of
said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7
thereof (on the admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting State). Kycalr
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U. S. Note
Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United
States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S.
District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the
papers submitted, private respondent appears to be charged in the United States with violation of the following
provisions of the United States Code (USC):
A)......18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum
Penalty 5 years on each count);
B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each
count);
C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each
count);
D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count);
E)......2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less
than one year).

24

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of
attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069.
Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the
documents in support thereof. The panel found that the "official English translation of some documents in
Spanish were not attached to the request and that there are some other matters that needed to be addressed"
(p. 15, Rollo). Calrky
Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a
letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.
S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to
comment on the request after he shall have received copies of the requested papers. Private respondent also
requested that the proceedings on the matter be held in abeyance in the meantime.
Later, private respondent requested that preliminarily, he be given at least a copy of, or access to, the request
of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify
on his request.
In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but
received by private respondent only on August 4, 1999), denied the foregoing requests for the following
reasons:
1. We find it premature to furnish you with copies of the extradition request and supporting documents from the
United States Government, pending evaluation by this Department of the sufficiency of the extradition
documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article
7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary
requirements and establishes the procedures under which the documents submitted shall be received and
admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D.
No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to
preliminary investigation of criminal cases. We merely determine whether the procedures and requirements
under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally
guaranteed rights of the accused in all criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished
by the court with copies of the petition, request and extradition documents and this Department will not pose
any objection to a request for ample time to evaluate said documents. Mesm
2. The formal request for extradition of the United States contains grand jury information and documents
obtained through grand jury process covered by strict secrecy rules under United States law. The United
States had to secure orders from the concerned District Courts authorizing the United States to disclose
certain grand jury information to Philippine government and law enforcement personnel for the purpose of
extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States
District Courts. In this particular extradition request the United States Government requested the Philippine
Government to prevent unauthorized disclosure of the subject information. This Departments denial of your
request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine
Government must represent the interests of the United States in any proceedings arising out of a request for
extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all
extradition requests.

25
3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition
request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that
"[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of
accused or convicted persons must be processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of
the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs,
and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish
private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein petitioners letter dated July 13, 1999); and prohibition (to restrain
petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin
the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition
of private respondent to the United States), with an application for the issuance of a temporary restraining
order and a writ of preliminary injunction (pp. 104-105, Rollo). Scslx
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of
said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own
behalf, moved that he be given ample time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of
Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to
maintain the status quo by refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act
directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on
respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the
counsels for the parties herein, is set on August 17, 1999 at 9:00 oclock in the morning. The respondents are,
likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on
or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY
RESTRAINING ORDER BECAUSE: Slxs c
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.
E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION

26
REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO
FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF
MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT,
GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE
EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND
SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT,
AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was
a temporary restraining order (TRO) providing: slx mis
NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You,
Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your
place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August
9, 1999 issued by public respondent in Civil Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th
day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their
respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a
review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal
point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent
entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily
render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as
those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this
Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is
adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under
the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict
between private respondents basic due process rights and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the substantive merits
of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-

27
94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August
17, 1999 by the trial court. Missdaa
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was
executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree
No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal
of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government." The portions of the Decree relevant to the instant case which involves a charged and not
convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign
Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of
the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal
force;
2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity
of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time
and place of the commission of these acts; Sda adsc
3. The text of the applicable law or a statement of the contents of said law, and the designation or description
of the offense by the law, sufficient for evaluation of the request; and
4. Such other documents or information in support of the request.
(Section 4, Presidential Decree No. 1069.)
Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently
provides:
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of
this law and the relevant treaty or convention, he shall forward the request together with the related documents
to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take
charge of the case.
The above provision shows only too clearly that the executive authority given the task of evaluating the
sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the
coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must
ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the identity and probable location of
the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the offense for which
extradition is requested;

28

4. A statement of the provisions of law describing the punishment for the offense; Rtc spped
5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of
punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article,
as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest
and committal for trial if the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents
received in support of the request had been certified by the principal diplomatic or consular officer of the
Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note
No. 951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive
authority of the Requested State determines that the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of
Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case
(Paragraph [1], Section 5, P. D. No. 1069). The lawyer designated shall then file a written petition with the
proper regional trial court of the province or city, with a prayer that the court take the extradition request under
consideration (Paragraph [2], ibid.). Korte
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as
practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the
day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest
and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.),
particularly to prevent the flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a
special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the
extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the
summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the
attorney having charge of the case may, upon application by the Requesting State, represent the latter
throughout the proceedings.

29
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the
reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10,
ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately
executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the
Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief
(Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition
Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political
one (Paragraph [1], Article 3, RP-US Extradition Treaty).
With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself:
What is the nature of the role of the Department of Justice at the evaluation stage of the extradition
proceedings? Sclaw
A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the
extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of
Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is
politically motivated, or that the offense is a military offense which is not punishable under non-military penal
legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary
of Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by
the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to
the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the
Department of Justice received the request, apparently without the Department of Foreign Affairs discharging
its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant
secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post
office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude
of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department
of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find
out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition
Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to
evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an
extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private
respondent insisted on the following: (1) the right to be furnished the request and the supporting papers; (2) the
right to be heard which consists in having a reasonable period of time to oppose the request, and to present
evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the
filing of private respondent's opposition to the request. Kyle
The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers
and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the
Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the
message that if it were to evaluate the extradition request, it would not allow private respondent to participate
in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs
thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded
judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of
Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to
officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than
one day, make the more authoritative determination?

30

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui
generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial
functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the
completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on
the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a
determination whether or not the request is politically motivated, or that the offense is a military one which is
not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or
inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative bodys quasijudicial power. Ex sm
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b)
determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the
facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States,
304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one of the
determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority
(Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the
records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p.
27), or to require disclosure of information by means of accounts, records, reports, testimony of witnesses,
production of documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or
tool in an administrative agencys performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an
investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is
limited to investigating the facts and making findings in respect thereto. The Court laid down the test of
determining whether an administrative body is exercising judicial functions or merely investigatory functions:
Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the
parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based
on the facts and circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. Mse sm
The above description in Ruperto applies to an administrative body authorized to evaluate extradition
documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting
State and the prospective extraditee. Its only power is to determine whether the papers comply with the
requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such
finding is thus merely initial and not final. The body has no power to determine whether or not the extradition
should be effected. That is the role of the court. The bodys power is limited to an initial finding of whether or
not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized
by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may
result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages:
First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so
because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of
the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but
he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential
Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged
(Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that
once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained,
or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be

31
discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight
from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of
the extradition petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditees liberty as early as during the evaluation
stage. It is not only an imagined threat to his liberty, but a very imminent one. Sc lex
Because of these possible consequences, we conclude that the evaluation process is akin to an administrative
agency conducting an investigative proceeding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a
prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,
Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a
number of cases, we had occasion to make available to a respondent in an administrative case or investigation
certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by
Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that
had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against
self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright,
372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against selfincrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal
prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an
administrative investigation of a licensed physician who is charged with immorality, which could result in his
loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan
(6 SCRA 1059 [1962]), pointed out that the revocation of ones license as a medical practitioner, is an even
greater deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent
which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the
investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal,
and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5
SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a
proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the
forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in
form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it
cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for
the offense charged, the proceeding is civil in nature. x law
The cases mentioned above refer to an impending threat of deprivation of ones property or property right. No
less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty,
which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys
precedence over property, for while forfeited property can be returned or replaced, the time spent in
incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a
foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the
evaluation procedure is akin to a preliminary investigation since both procedures may have the same result
the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may result in the filing of an information against the
respondent, can possibly lead to his arrest, and to the deprivation of his liberty.
Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, Petitioners Memorandum)
that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not welltaken. Wright is not authority for petitioners conclusion that his preliminary processing is not akin to a

32
preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the
prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information,
and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public
authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in
furtherance of the general public good, which regards and preserves these principles of liberty and justice,
must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process
requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and punishment of crime
in their respective jurisdictions. At the same time, both States accord common due process protection to their
respective citizens. Sc
The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical
language and terminology, but more importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which make them capable of meeting every modern
problem, and their having been designed from earliest time to the present to meet the exigencies of an
undefined and expanding future. The requirements of due process are interpreted in both the United States
and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect
and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the
due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the
embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owners Association vs. City
Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the
very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components substantive due process which requires the intrinsic validity of
the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process
which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in
criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests,
and upon notice, they may claim the right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the
Rules of Court guarantees the respondents basic due process rights, granting him the right to be furnished a
copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits
and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the
right to examine all other evidence submitted by the complainant. Scmis
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceedings where there is an urgent need for immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative
charges (Section 63, Local Government Code, B. P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to public health and decency, and
the cancellation of a passport of a person sought for criminal prosecution;

33
2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from
enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the
summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary
appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the
extradition proceedings fall under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy
considering that the subject treaty involves the U.S. Government. Mis sc
American jurisprudence distinguishes between interstate rendition or extradition which is based on the
Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In
interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the
demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry
out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in
which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an
alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or
jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation
that the person demanded was in the demanding state at the time the offense charged was committed, and
that the person demanded is charged with the commission of the crime or that prosecution has been begun in
the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then
filed with the governor of the asylum state, and must contain such papers and documents prescribed by
statute, which essentially include a copy of the instrument charging the person demanded with a crime, such
as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging
instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the
governor of the asylum state to effect the extradition (35 C.J.S. 408-410). A statutory provision requiring
duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other
instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney
is directory. However, the right being such a basic one has been held to be a right mandatory on demand
(Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
853). Mis spped
In international proceedings, extradition treaties generally provide for the presentation to the executive
authority of the Requested State of a requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d
815).
In petitioners memorandum filed on September 15, 1999, he attached thereto a letter dated September 13,
1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition
procedures and principles, which are basically governed by a combination of treaties (with special reference to
the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the
provisional arrest of an individual may be made directly by the Philippine Department of Justice to the U.S.
Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is
transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice.
Before doing so, the Department of State prepares a declaration confirming that a formal request has been
made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article

34
2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures
admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18
U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in
support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country.
The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the
hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and
(c) there is probable cause to believe that the defendant is the person sought and that he committed the
offenses charged (Ibid.) Spped
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a
"complaint made under oath, charging any person found within his jurisdiction" with having committed any of
the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is
noted that a long line of American decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or
innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations
in factual findings and conclusions of law and certifies the persons extraditability. The court then forwards this
certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate
decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186).
7. The subject of an extradition request may not litigate questions concerning the motives of the requesting
government in seeking his extradition. However, a person facing extradition may present whatever information
he deems relevant to the Secretary of State, who makes the final determination whether to surrender an
individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity
the Department of State which has the power to evaluate the request and the extradition documents in the
beginning, and, in the person of the Secretary of State, the power to act or not to act on the courts
determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should
make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp.
10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for
extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the
request to the Department of Justice which has taken over the task of evaluating the request as well as
thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Jo spped
Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be
extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that
petitioners primary concern is the possible delay in the evaluation process.
We agree with private respondents citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest
worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed
and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in
particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and
perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)

35
The United States, no doubt, shares the same interest as the Philippine Government that no right that of
liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well,
is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondents Memorandum.) Spped jo
In the Philippine context, this Courts ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the individual are concerned,
the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the
means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an individuals rights. It is no
exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority
of one even as against the rest of the nation who would deny him that right (Association of Small Landowners
in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioners argument that extradition is a tool of criminal law enforcement. To be
effective, requests for extradition or the surrender of accused or convicted persons must be processed
expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are,
however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous
haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Miso
Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee
yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of
the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387)
since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements,
which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition
treaty, the executive authority of the requested state has the power to deny the behest from the requesting
state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs
finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request
to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid
requirements will not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in assuring
compliance with the requirements of the law and the treaty since it even informed the U.S. Government of
certain problems in the extradition papers (such as those that are in Spanish and without the official English
translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation
meetings are still supposed to take place between the lawyers in his Department and those from the U.S.
Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an
abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently
necessitates immediate and prompt action where notice and hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private
respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him?
Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand, there is yet no
extraditee, but ironically on the other, it results in an administrative determination which, if adverse to the
person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the
extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces
the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The
prejudice to the "accused" is thus blatant and manifest.

36
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and
shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article
III which reads: Nex old
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as
to government research data used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1)
the right to information on matters of public concern, and (2) the corollary right of access to official records and
documents. The general right guaranteed by said provision is the right to information on matters of public
concern. In its implementation, the right of access to official records is likewise conferred. These cognate or
related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A
Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public
opinion which alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondents letter-request dated July 1, 1999 do not fall
under the guarantee of the foregoing provision since the matters contained in the documents requested are not
of public concern. On the other hand, private respondent argues that the distinction between matters vested
with public interest and matters which are of purely private interest only becomes material when a third person,
who is not directly affected by the matters requested, invokes the right to information. However, if the person
invoking the right is the one directly affected thereby, his right to information becomes absolute.
The concept of matters of public concern escapes exact definition. Strictly speaking, every act of a public
officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution
of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives or simply because such
matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]).
Hence, the real party in interest is the people and any citizen has "standing".Mani kx
When the individual himself is involved in official government action because said action has a direct bearing
on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to
be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public
concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed
of the nature and cause of the accusation against him.
The right to information is implemented by the right of access to information within the control of the
government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such
information may be contained in official records, and in documents and papers pertaining to official acts,
transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official government action from the U.
S. Government. No official action from our country has yet been taken. Moreover, the papers have some
relation to matters of foreign relations with the U. S. Government. Consequently, if a third party invokes this
constitutional provision, stating that the extradition papers are matters of public concern since they may result
in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of
the interests necessary for the proper functioning of the government. During the evaluation procedure, no
official governmental action of our own government has as yet been done; hence the invocation of the right is
premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public
concern, because our government by then shall have already made an official decision to grant the extradition
request. The extradition of a fellow Filipino would be forthcoming.

37

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private
respondents entitlement to notice and hearing during the evaluation stage of the proceedings constitute a
breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer
is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of
the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit
ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on
foreign relations. Maniks
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires
the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal
duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he
Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations." Under the doctrine of incorporation, rules of international law form part
of the law of the land and no further legislative action is needed to make such rules applicable in the domestic
sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with
situations in which there appears to be a conflict between a rule of international law and the provisions of the
constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect
to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the Incorporation Clause in the above-cited constitutional
provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101
Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the
reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances
(Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does
not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere.
The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex
posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states
where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and
treaties may be invalidated if they are in conflict with the constitution (Ibid.). Manikan
In the case at bar, is there really a conflict between international law and municipal or national law? En
contrario, these two components of the law of the land are not pitted against each other. There is no occasion
to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition
Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a
prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of
extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior
thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this
silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation
procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the
supporting documents.
We disagree.

38
In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin
due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the
Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American
jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings
as explained above, the prospective extraditee may even request for copies of the extradition documents from
the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable
right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent unauthorized
disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice
Panel of Attorneys. The confidentiality argument is, however, overturned by petitioners revelation that
everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice
states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If
the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition
proceedings. Not even during trial. Oldmis o
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence
and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of
notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar
situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation
since both procedures may result in the arrest of the respondent or the prospective extraditee. In the
evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RPUS Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioners theory, because there is
no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus
is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ of
habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires
it"? Petitioners theory would also infer that bail is not available during the arrest of the prospective extraditee
when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not
provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons,
except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended
" Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting
foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? Ncm
The basic principles of administrative law instruct us that "the essence of due process in administrative
proceedings is an opportunity to explain ones side or an opportunity to seek reconsideration of the actions or
ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT
vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye,
278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to
the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils.,
283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the
enforcement of a law or treaty. Petitioners fears that the Requesting State may have valid objections to the
Requested States non-performance of its commitments under the Extradition Treaty are insubstantial and
should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of
Presidential Decree No. 1069?

39
Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201
SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in
summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service
Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for
Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated
National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in
the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by
Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal
investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals:
... [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be
removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an
employee must be informed of the charges preferred against him, and that the normal way by which the
employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural
requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on
due process. The second minimum requirement is that the employee charged with some misfeasance or
malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses
against the charges levelled against him and to present evidence in support of his defenses. Ncmmis
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of
the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The
convergence of petitioners favorable action on the extradition request and the deprivation of private
respondents liberty is easily comprehensible.
We have ruled time and again that this Courts equity jurisdiction, which is aptly described as "justice outside
legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements
(Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268
SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality,"
since private respondents due process rights, although not guaranteed by statute or by treaty, are protected
by constitutional guarantees. We would not be true to the organic law of the land if we choose strict
construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles
of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government
authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit.
Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers,
and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents
in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby
ordered dismissed.
SO ORDERED. 6/2/00 2:12 PM
Davide, Jr., C.J., joins Mr. Justice Puno in his dissent.
Bellosillo, Purisima, Buena, and De Leon, Jr., JJ., concur.
Puno, J., please see dissent.

40

Vitug, J., see separate opinion.

Kapunan, and Ynares-Santiago, JJ., see separate concurring opinion.
Mendoza, Pardo, and Gonzaga-Reyes, JJ., join dissenting opinion of J. Puno and J. Panganiban.
Panganiban, J., please see dissenting opinion.
Quisumbing, J., with concurring opinion.

41

ANG TIBAY V CIR

G.R. No. L-46496

February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and

NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.
Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.
LAUREL, J.:
The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has
filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the
following legal conclusions of the majority opinion of this Court:
1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una
determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para
el pago de los salarios segun costumbre en la localidad o cunado se termine la obra;
2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell,
sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la
fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma;
3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo
fijo de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que
cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion
penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que
dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser
empleados suyos por terminacion del contrato en virtud del paro.
The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement
rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a
new trial, and avers:
1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG
TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is
entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native
dealers in leather.
2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically
prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.
3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of
leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite
the breach of his CONTRACT with the Philippine Army.
4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by
Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed
memorandum, p. 25.)

42
5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective
representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.)
6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and
continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the
salutary provisions of a modern labor legislation of American origin where the industrial peace has always
been the rule.
7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National
Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood.
8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due
diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial
Relations.
9. That the attached documents and exhibits are of such far-reaching importance and effect that their
admission would necessarily mean the modification and reversal of the judgment rendered herein.
The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent
National Labor Union, Inc.
In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial
of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the
motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of
the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly
procedure in cases of this nature, in interest of orderly procedure in cases of this nature, to make several
observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain
guiding principles which should be observed in the trial of cases brought before it. We have re-examined the
entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found
no substantial evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity.
The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory
and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is
evident that these statements and expressions of views of counsel have no evidentiary value.
The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its
creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system
of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which
is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to
it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its
organic law, is more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in
the determination of disputes between employers and employees but its functions in the determination of
disputes between employers and employees but its functions are far more comprehensive and expensive. It
has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter
controversy or dispute arising between, and/or affecting employers and employees or laborers, and regulate
the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103
(section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any
industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as
regards wages, shares or compensation, hours of labor or conditions of tenancy or employment, between
landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farmlaborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the
Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as
existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court for the
sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of such hearing,
endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2,

43
section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all industries
established in a designated locality, with a view to determinating the necessity and fairness of fixing and
adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon"
or rental to be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal
to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that
purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to
determine specific controversies between labor and capital industry and in agriculture. There is in reality here a
mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of
governmental powers.
In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13,
1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated
September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly
constrained by technical rules of procedure, and the Act requires it to "act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any
technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its
mind in such manner as it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not
be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural
dispute, but may include in the award, order or decision any matter or determination which may be deemed
necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural
disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially
regulated by the rules recently promulgated by the rules recently promulgated by this Court to carry into the
effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to
be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before
it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and
investigations of an administrative character. There are primary rights which must be respected even in
proceedings of this character:
(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected
to present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v.
U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be
protected by the rudimentary requirements of fair play.
(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice
Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court in
Edwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of
the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the
evidence is presented can thrust it aside without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly
attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the
vesting of unlimited power anywhere. Law is both a grant and a limitation upon power.
(4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R.
No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial."
(Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct.
648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to
support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985,
989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting
Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of
evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of

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

45
be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and
under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the
parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same is
hereby granted, and the entire record of this case shall be remanded to the Court of Industrial Relations, with
instruction that it reopen the case, receive all such evidence as may be relevant and otherwise proceed in
accordance with the requirements set forth hereinabove. So ordered.
Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

46

PEREZ v PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN

G.R. No. 164763

February 12, 2008

REYES, R.T., J.:

PETITIONER Zenon R. Perez seeks a review1 of his conviction by the Sandiganbayan2 for malversation of
public funds3 under Article 217 of the Revised Penal Code.
This is not a big case but its implications are wide-ranging and the issues We resolve include the rights to
speedy trial and speedy disposition of a criminal case, the balancing test, due process, and cruel and unusual
punishment.
The Facts
On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial Auditors Office,
Bohol,4 conducted a cash examination on the account of petitioner, who was then the acting municipal
treasurer of Tubigon, Bohol.
Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A radio message was
sent to Loon, the town where he resided, to apprise him of the on-going audit. The following day, the audit
team counted the cash contained in the safe of petitioner in his presence. In the course of the audit, the
amount of P21,331.79 was found in the safe of petitioner.
The audit team embodied their findings in the Report of Cash Examination,5 which also contained an inventory
of cash items. Based on the said audit, petitioner was supposed to have on hand the total amount of
P94,116.36, instead of the P21,331.79, incurring a shortage of P72,784.57.6
The report also contained the Cash Production Notice7 dated January 4, 1989, where petitioner was informed
and required to produce the amount of P72,784.57, and the cash count sheet signed and acknowledged by
petitioner indicating the correctness of the amount of P21,331.79 found in his safe and counted in his
presence. A separate demand letter8 dated January 4, 1989 requiring the production of the missing funds was
sent and received by petitioner on January 5, 1989.
When asked by the auditing team as to the location of the missing funds, petitioner verbally explained that part
of the money was used to pay for the loan of his late brother, another portion was spent for the food of his
family, and the rest for his medicine.9
As a result of the audit, Arlene R. Mandin prepared a memorandum10 dated January 13, 1989 addressed to
the Provincial Auditor of Bohol recommending the filing of the appropriate criminal case against petitioner.
On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of Bohol the amounts of
P10,000.00 and P15,000.00, respectively. On February 14, 1989, petitioner again remitted to the Provincial
Treasurer an additional amount of P35,000.00, followed by remittances made on February 16, 1989 in the
amounts of P2,000.00 and P2,784.00.
An administrative case was filed against petitioner on February 13, 1989. He filed an Answer11 dated February
22, 1989 reiterating his earlier verbal admission before the audit team.
On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial Treasurer of Bohol.
Petitioner had then fully restituted his shortage in the amount of P72,784.57. The full restitution of the missing
money was confirmed and shown by the following receipts:12
Official Receipt No.

47
Date Issued and Received
Amount
8266659
January 16, 1989
P10,000.00
8266660
January 16, 1989
P15,000.00
8266662
February 14, 1989
P35,000.00
8266667
February 16, 1989
P 2,000.00
8266668
February 16, 1989
P 2,784.00
8266675
April 17, 1989
P 8,000.00
TOTAL P72,784.57
Later, petitioner was charged before the Sandiganbayan with malversation of public funds, defined and
penalized by Article 217 of the Revised Penal Code in an Information that read:
That on or about the period covering from December 28, 1988 to January 5, 1989, and for sometime prior
thereto, in the Municipality of Tubigon, Province of Bohol, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused Zenon R. Perez, a public officer being then Acting Municipal
Treasury of the said Municipality, by reason of the duties of his official position was accountable for the public
funds collected and received by him, with grave abuse of confidence did then and there willfully, unlawfully and
feloniously misappropriate, misapply, embezzle and take away from the said funds the total amount of
SEVENTY-TWO THOUSAND SEVEN HUNDRED EIGHTY-FOUR PESOS and 57/100 (P72,784.57), which

48
said fund was appropriated and converted by the said accused to his own personal use and benefit to the
damage and prejudice of the government in the aforementioned amount.
CONTRARY TO LAW.13 (Underscoring supplied)
On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of "not guilty."14
Pre-trial was initially set on June 4-5, 1990 but petitioners counsel moved for postponement. The
Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously scheduled, due to the
presence of prosecution witness Arlene R. Mandin, who came all the way from Bohol.
On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its witness.
Arlene R. Mandin testified as narrated above.
The defense presented evidence through petitioner Zenon R. Perez himself. He denied the contents of his first
Answer15 to the administrative case filed against him by the audit team. He claimed it was prepared without
the assistance of counsel and that at the time of its preparation and submission, he was not in peak mental
and physical condition, having been stricken with diabetes mellitus.16
He then revoked his Answer dated February 22, 1989 and filed his second Answer dated March 2, 1989.17 In
the latter, he vehemently denied that he incurred a cash shortage P72,784.57.
According to petitioner, the alleged shortage was in the possession and custody of his accountable personnel
at the time of the audit examination. Several amounts totalling P64,784.00 were remitted to him on separate
dates by his accountable officer, starting January 16, 1989 to February 16, 1989. The same were turned over
by him to the Office of the Provincial Treasurer, leaving an unremitted sum of P8,000.00 as of February 16,
1989.18 He remitted the P8,000.00 on April 17, 1989 to the Provincial Treasurer of Bohol, fully restoring the
cash shortage.
Petitioner further testified that on July 30, 1989, he submitted his Position Paper19 before the Office of the
Ombudsman, Cebu City and maintained that the alleged cash shortage was only due to oversight. Petitioner
argued that the government did not suffer any damage or prejudice since the alleged cash shortage was
actually deposited with the Office of the Provincial Treasurer as evidenced by official receipts.20
Petitioner completed his testimony on September 20, 1990. He rested his case on October 20, 1990.21
Sandiganbayan Disposition
On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with a fallo reading:
WHEREFORE, judgment is hereby rendered finding the accused ZENON R. PEREZ, GUILTY beyond
reasonable doubt of the crime of Malversation of Public Funds as defined in and penalized by Article 217 of the
Revised Penal Code and, there being one mitigating circumstance without any aggravating circumstance to
offset the same, is hereby sentenced to suffer an indeterminate penalty of from TEN (10) YEARS and ONE (1)
DAY of prision mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion
temporal as the maximum and to suffer perpetual special disqualification. The accused Zenon R. Perez is
likewise ordered to pay a FINE equal to the total amount of the funds malversed, which is Seventy-Two
Thousand Seven Hundred Eighty-Four Pesos and Fifty-Seven Centavos (P72, 784.57).
SO ORDERED.22 (Emphasis in the original)
On January 13, 2004, petitioner filed a motion for reconsideration23 which the prosecution opposed on
January 28, 2004.24 Petitioner replied25 to the opposition. On August 6, 2004, petitioners motion was denied
with finality.

49

On September 23, 2004, petitioner resorted to the instant appeal26 raising the following issues, to wit:
I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING THE DECISION OF THE
CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE PETITIONERS RIGHT TO SPEEDY
DISPOSITION OF HIS CASE AND DUE PROCESS.
II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE SENTENCE IMPOSED IS
CRUEL AND THEREFORE VIOLATES SECTION 19 OF ARTICLE III (BILL OF RIGHTS) OF THE
CONSTITUTION.27 (Underscoring supplied)
Our Ruling
Before addressing petitioners twin assignment of errors, We first tackle the propriety of petitioners conviction
for malversation of public funds.
I. Petitioner was correctly convicted of malversation.
Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts punished as
malversation are: (1) appropriating public funds or property, (2) taking or misappropriating the same, (3)
consenting, or through abandonment or negligence, permitting any other person to take such public funds or
property, and (4) being otherwise guilty of the misappropriation or malversation of such funds or property.28
There are four elements that must concur in order that one may be found guilty of the crime. They are:
(a) That the offender be a public officer;
(b) That he had the custody or control of funds or property by reason of the duties of his office;
(c) That those funds or property involved were public funds or property for which he is accountable; and
(d) That he has appropriated, took or misappropriated or consented or, through abandonment or negligence,
permitted another person to take them.29
Evidently, the first three elements are present in the case at bar. At the time of the commission of the crime
charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon, Bohol. By reason
of his public office, he was accountable for the public funds under his custody or control.
The question then is whether or not petitioner has appropriated, took or misappropriated, or consented or
through abandonment or negligence, permitted another person to take such funds.
We rule in the affirmative.
In malversation, all that is necessary to prove is that the defendant received in his possession public funds;
that he could not account for them and did not have them in his possession; and that he could not give a
reasonable excuse for its disappearance. An accountable public officer may be convicted of malversation even
if there is no direct evidence of misappropriation and the only evidence is shortage in his accounts which he
has not been able to explain satisfactorily.30
Verily, an accountable public officer may be found guilty of malversation even if there is no direct evidence of
malversation because the law establishes a presumption that mere failure of an accountable officer to produce
public funds which have come into his hands on demand by an officer duly authorized to examine his accounts
is prima facie case of conversion.31

50
Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the accused to
adequately explain the location of the funds or property under his custody or control in order to rebut the
presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do so, the
accused may be convicted under the said provision.
However, the presumption is merely prima facie and a rebuttable one. The accountable officer may overcome
the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has not put said
funds or property to personal use, then that presumption is at end and the prima facie case is destroyed.32
In the case at bar, petitioner was not able to present any credible evidence to rebut the presumption that he
malversed the missing funds in his custody or control. What is extant in the records is that the prosecution,
through witness Arlene R. Mandin, was able to prove that petitioner malversed the funds under his custody and
control. As testified by Mandin:
Atty. Caballero:
Q:

Was Mr. Zenon Perez actually and physically present during the time of your cash examination?

Witness:
A.

Yes, Sir.

Q:

From December 28, to January 5, 1989?

A:

He was present on December 28, 1988 and January 4 and 5, 1989, Sir.

Q: Did he not make any verbal explanation as the reason why he was short of about P72,000.00, after you
conducted the cash count on January 5, 1989?
A:

Yes, Sir, he did.

Q:

What did he tell you?

A: He told us that he used some of the money to pay for the loan of his brother and the other portion was
spent for food of his family; and the rest for his medicine.33 (Emphasis supplied)
Petitioner gave himself away with his first Answer filed at the Office of the Provincial Treasurer of Bohol in the
administrative case filed against him.
In that Answer, petitioner narrated how he disposed of the missing funds under his custody and control, to wit:
(1) about P30,000.00 was used to pay the commercial loan of his late brother; (2) he spent P10,000.00 for the
treatment of his toxic goiter; and (3) about P32,000.00 was spent for food and clothing of his family, and the
education of his children. He there stated:
1. That the circumstances surrounding the cash shortage in the total amount of P72,784.57 during the
examination of the respondents cash accounts by the Commission on Audit on December 28-29, 1988 and
January 4-5, 1989 are as follows, to wit:
(a) That respondent paid the amount of about P30,000.00 to the Philippine National Bank, Tagbilaran Branch
as interests of the commercial loan of his late brother Carino R. Perez using respondents house and lot as
collateral thereof. If the interests would not be paid, the loan would be foreclosed to respondents great
prejudice and disadvantage considering that he and his family are residing in said house used as collateral;
(b) That respondent spent the amount of P10,000.00 in connection with the treatment of his toxic goiter;

51
(c) That the rest of the amount amounting to about P32,000.00 was spent by him for his familys foods,
clothings (sic), and education of his children because his monthly salary is not enough for the needs of his
family.34
By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin, the fourth element of
the crime of malversation was duly established. His conviction thus stands in terra firma.
True it is that petitioner filed another Answer on March 2, 1989 with the Office of the Provincial Treasurer of
Bohol, substantially changing the contents of his earlier answer of February 22, 1989. His second Answer
averred:
3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were still in the possession
and custody of his accountable personnel at the time of the examination held by the auditor of the Commission
on Audit;
4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were already remitted to him
by his accountable personnel after January 5, 1989, and only the remaining amount of P8,000.00 remains to
be remitted to him by his accountable personnel.35
The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only changed his story to
exonerate himself, after realizing that his first Answer put him in a hole, so to speak.
It is contended that petitioners first Answer of February 22, 1989 should not have been given probative weight
because it was executed without the assistance of counsel.36
There is no law, jurisprudence or rule which mandates that an employee should be assisted by counsel in an
administrative case. On the contrary, jurisprudence is in unison in saying that assistance of counsel is not
indispensable in administrative proceedings.
Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat may tulong ng
abogado sa isang kasong administratibo. Sa katunayan, ang hurisprudensiya ay iisa ang sinasabi na ang
pagtulong ng isang abogado ay hindi kailangang-kailangan sa kasong administratibo.
The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is
a right afforded a suspect or accused during custodial investigation. It is not an absolute right and may be
invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry.37
Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang ang waiver ay nakasulat at sa
harap ng abogado, ay karapatang ibinibigay sa suspek o nasasakdal sa isang custodial investigation. Ito ay
hindi lubos na karapatan at maaring hingin o tanggihan sa isang prosesong kriminal, at lalo na sa isang
administratibong pagsisiyasat.
While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the
fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of respondents capacity to represent himself, and no
duty rests on such body to furnish the person being investigated with counsel.38
Thus, the right to counsel is not imperative in administrative investigations because such inquiries are
conducted merely to determine whether there are facts that merit disciplinary measures against erring public
officers and employees, with the purpose of maintaining the dignity of government service.39

52
Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang administratibong
imbestigasyon sapagkat ito ay ginagawa lamang upang malaman kung may sapat na batayan na patawan ng
disiplina ang nagkasalang opisyal o empleyado, para mapanatili ang dignidad ng paglilingkod sa pamahalaan.
There is nothing in the Constitution that says that a party in a non-litigation proceeding is entitled to be
represented by counsel and that, without such representation, he shall not be bound by such proceedings. The
assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due
process clause such that without the participation of its members, the safeguard is deemed ignored or violated.
The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side.40
More than that, petitioners first Answer may be taken against him, as he executed it in the course of the
administrative proceedings below. This is pursuant to Rule 130, Section 26 of the Rules of Court which
provides that the "act, declaration or omission of a party as to a relevant fact may be given against him." In
People v. Lising,41 the Court held:
Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant to the rule
that the act, declaration or omission of a party as to a relevant fact may be given against him. This is based
upon the presumption that no man would declare anything against himself, unless such declarations were true.
A mans act, conduct and declarations wherever made, provided they be voluntary, are admissible against him,
for the reason that it is fair to presume that they correspond with the truth and it is his fault if they are not.
There is also no merit in the contention that petitioners sickness affected the preparation of his first Answer.
He presented no convincing evidence that his disease at the time he formulated that answer diminished his
capacity to formulate a true, clear and coherent response to any query. In fact, its contents merely reiterated
his verbal explanation to the auditing team on January 5, 1989 on how he disposed of the missing funds.
II. There is no violation of the rights to a speedy disposition of the case and to due process of law.
We now discuss the right to a speedy trial and disposition, the balancing test, due process, and cruel and
unusual punishment.
Petitioner asserts that his right to due process of law and to speedy disposition of his case was violated
because the decision of the Sandiganbayan was handed down after the lapse of more than twelve years. The
years that he had to wait for the outcome of his case were allegedly spent in limbo, pain and agony.42
We are not persuaded.
Due process of law as applied to judicial proceedings has been interpreted to mean "a law which hears before
it condemns, which proceeds on inquiry, and renders judgment only after trial."43 Petitioner cannot complain
that his right to due process has been violated. He was given all the chances in the world to present his case,
and the Sandiganbayan rendered its decision only after considering all the pieces of evidence presented
before it.
Petitioners claim of violation of his right to a speedy disposition of his case must also fail.
The 1987 Constitution44 guarantees the right of an accused to speedy trial. Both the 1973 Constitution in
Section 16 of Article IV and the 1987 Constitution in Section 16 of Article III, Bill of Rights, are also explicit in
granting to the accused the right to speedy disposition of his case.45
In Barker v. Wingo,46 the United States Supreme Court was confronted for the first time with two "rigid
approaches" on speedy trial as "ways of eliminating some of the uncertainty which courts experience
protecting the right."47

53
The first approach is the "fixed-time period" which holds the view that "the Constitution requires a criminal
defendant to be offered a trial within a specified time period."48 The second approach is the "demand-waiver
rule" which provides that "a defendant waives any consideration of his right to speedy trial for any period prior
to which he has not demanded trial. Under this rigid approach, a prior demand is a necessary condition to the
consideration of the speedy trial right."49
The fixed-time period was rejected because there is "no constitutional basis for holding that the speedy trial
can be quantified into a specific number of days or months."50 The demand-waiver rule was likewise rejected
because aside from the fact that it is "inconsistent with this Courts pronouncements on waiver of constitutional
rights,"51 "it is insensitive to a right which we have deemed fundamental."52
The Court went on to adopt a middle ground: the "balancing test," in which "the conduct of both the
prosecution and defendant are weighed."53 Mr. Justice Powell, ponente, explained the concept, thus:
A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do
little more than identify some of the factors which courts should assess in determining whether a particular
defendant has been deprived of his right. Though some might express them in different ways, we identify four
such factors: Length of delay, the reason for the delay, the defendants assertion of his right, and prejudice to
the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.
Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such
an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the
delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different
weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a
valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed
the third factor, the defendants responsibility to assert his right. Whether and how a defendant asserts his right
is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the
length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice,
which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely
a defendant is to complain. The defendants assertion of his speedy trial right, then, is entitled to strong
evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that
failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the
interests of defendants which the speedy trial right was designed to protect. This Court has identified three
such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If
witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense
witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always
reflected in the record because what has been forgotten can rarely be shown.54 (Emphasis supplied)
Philippine jurisprudence has, on several occasions, adopted the balancing test.
In 1991, in Gonzales v. Sandiganbayan,55 this Court ruled:

54
It must be here emphasized that the right to a speedy disposition of a case, like the right to speedy trial, is
deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or
when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable
motive a long period of time is allowed to elapse without the party having his case tried. Equally applicable is
the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a
speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant
are weighed, and such factors as length of the delay, reason for the delay, the defendants assertion or nonassertion of his right, and prejudice to the defendant resulting from the delay, are considered. (Underscoring
supplied)
Subsequently, in Dela Pea v. Sandiganbayan,56 this Court again enumerated the factors that should be
considered and balanced, namely: (1) length of delay; (2) reasons for the delay; (3) assertion or failure to
assert such right by the accused; and (4) prejudice caused by the delay.57
Once more, in Mendoza-Ong v. Sandiganbayan,58 this Court reiterated that the right to speedy disposition of
cases, like the right to speedy trial, is violated only when the proceedings are attended by vexatious, capricious
and oppressive delays.59 In the determination of whether said right has been violated, particular regard must
be taken of the facts and circumstances peculiar to each case.60 The conduct of both the prosecution and
defendant, the length of the delay, the reasons for such delay, the assertion or failure to assert such right by
accused, and the prejudice caused by the delay are the factors to consider and balance.61
Moreover, the determination of whether the delays are of said nature is relative and cannot be based on a
mere mathematical reckoning of time.62
Measured by the foregoing yardstick, We rule that petitioner was not deprived of his right to a speedy
disposition of his case.
More important than the absence of serious prejudice, petitioner himself did not want a speedy disposition of
his case.63 Petitioner was duly represented by counsel de parte in all stages of the proceedings before the
Sandiganbayan. From the moment his case was deemed submitted for decision up to the time he was found
guilty by the Sandiganbayan, however, petitioner has not filed a single motion or manifestation which could be
construed even remotely as an indication that he wanted his case to be dispatched without delay.
Petitioner has clearly slept on his right. The matter could have taken a different dimension if during all those
twelve years, petitioner had shown signs of asserting his right to a speedy disposition of his case or at least
made some overt acts, like filing a motion for early resolution, to show that he was not waiving that right.64
Currit tempus contra decides et sui juris contempores: Time runs against the slothful and those who neglect
their rights. Ang panahon ay hindi panig sa mga tamad at pabaya sa kanilang karapatan. Vigilantis sed non
dormientibus jura in re subveniunt. The law aids the vigilant and not those who slumber in their rights. Ang
batas ay tumutulong sa mga mapagbantay at hindi sa mga humihimbing sa kanilang karapatan.
Pending his conviction by the Sandiganbayan, petitioner may have truly lived in suspicion and anxiety for over
twelve years. However, any prejudice that may have been caused to him in all those years was only minimal.
The supposed gravity of agony experienced by petitioner is more imagined than real.
This case is analogous to Guerrero v. Court of Appeals.65 There, the Court ruled that there was no violation of
petitioners right to speedy trial and disposition of his case inasmuch as he failed seasonably to assert his
rights:
In the present case, there is no question that petitioner raised the violation against his own right to speedy
disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would
have just continued to sleep on his right a situation amounting to laches had the respondent judge not
taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he

55
could dispose of the case. The matter could have taken a different dimension if during all those ten years
between 1979 when accused filed his memorandum and 1989 when the case was re-raffled, the accused
showed signs of asserting his right which was granted him in 1987 when the new Constitution took effect, or at
least made some overt act (like a motion for early disposition or a motion to compel the stenographer to
transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a
waiver of such right.
While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and
although this Court has always zealously espoused protection from oppressive and vexatious delays not
attributable to the party involved, at the same time, we hold that a partys individual rights should not work
against and preclude the peoples equally important right to public justice. In the instant case, three people
died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the
disposition of the case prejudiced not just the accused but the people as well. Since the accused has
completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to
dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give
the parties fair opportunity to obtain (and the court to dispense) substantial justice in the premises.
III. The law relied upon in convicting petitioner is not cruel and unusual. It does not violate Section 19, Article III
of the Bill of Rights.
What constitutes cruel and unusual punishment has not been exactly defined.66 The Eighth Amendment of the
United States Constitution,67 the source of Section 19, Article III of the Bill of Rights68 of our own Constitution,
has yet to be put to the test to finally determine what constitutes cruel and inhuman punishment.69
Cases that have been decided described, rather than defined, what is meant by cruel and unusual punishment.
This is explained by the pronouncement of the United States Supreme Court that "[t]he clause of the
Constitution, in the opinion of the learned commentators, may be therefore progressive, and is not fastened to
the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice."70
In Wilkerson v. Utah,71 Mr. Justice Clifford of the United States Supreme Court opined that "[d]ifficulty would
attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and
unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, x x x and all
others in the same line of unnecessary cruelty, are forbidden by that amendment to the constitution."72
In In Re: Kemmler,73 Mr. Chief Justice Fuller of that same Court stated that "[p]unishments are cruel when
they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that
word as used in the constitution. It implies x x x something more inhuman and barbarous, something more than
the mere extinguishment of life."74
Again, in Weems v. U.S.,75 Mr. Justice McKenna held for the Court that cadena temporal and its accessory
penalties "has no fellow in American legislation. Let us remember that it has come to us from a government of
a different form and genus from ours. It is cruel in its excess of imprisonment and that which accompanies and
follows imprisonment. It is unusual in character. Its punishments come under the condemnation of the Bill of
Rights, both on account of their degree and kind. And they would have those bad attributes even if they were
found in a Federal enactment, and not taken from an alien source."
In Echegaray v. Executive Secretary,76 this Court in a per curiam Decision held that Republic Act No. 8177,77
even if it does not provide in particular the details involved in the execution by lethal injection, is not cruel,
degrading or inhuman, and is thus constitutional. Any infliction of pain in lethal injection is merely incidental in
carrying out the execution of the death penalty and does not fall within the constitutional proscription against
cruel, degrading or inhuman punishment.78

56
The Court adopted the American view that what is cruel and unusual is not fastened to the obsolete but may
acquire meaning as public opinion becomes enlightened by humane justice and must draw its meaning from
the evolving standards of decency that mark the progress of a maturing society.79
In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of
malversation of public funds "that ha[ve] been replenished, remitted and/or returned" to the government is cruel
and therefore unconstitutional, "as government has not suffered any damage."80
The argument is specious on two grounds.
First. What is punished by the crime of malversation is the act of a public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall appropriate the same, or shall take and
misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take
such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property.81
Payment or reimbursement is not a defense for exoneration in malversation; it may only be considered as a
mitigating circumstance. This is because damage is not an element of malversation.
Second. There is strong presumption of constitutionality accorded to statutes.
It is established doctrine that a statute should be construed whenever possible in harmony with, rather than in
violation of, the Constitution.82 The presumption is that the legislature intended to enact a valid, sensible and
just law and one which operates no further than may be necessary to effectuate the specific purpose of the
law.83 It is presumed that the legislature has acted within its constitutional powers. So, it is the generally
accepted rule that every statute, or regularly accepted act, is, or will be, or should be, presumed to be valid and
constitutional.84
He who attacks the constitutionality of a law has the onus probandi to show why such law is repugnant to the
Constitution. Failing to overcome its presumption of constitutionality, a claim that a law is cruel, unusual, or
inhuman, like the stance of petitioner, must fail.
IV. On the penalty
The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten (10) years and one (1) day of
prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. In
imposing the penalty, it found that petitioner was entitled to the mitigating circumstance of payment which is
akin to voluntary surrender.
Article 217 penalizes malversation in the following tenor:
Article 217. Malversation of public funds or property. Presumption of malversation. Any public officer who,
by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or
shall take and misappropriate or shall consent, or through abandonment or negligence shall permit any other
person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property.
xxxx
4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than
12,000 but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal
in its maximum period to reclusion perpetua.

57
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and
a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable
upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds
or property to personal uses. (Underscoring supplied)
The amount malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in its maximum
period to reclusion perpetua, which has a range of seventeen (17) years, four (4) months and one (1) day to
forty (40) years.
However, the commission of the crime was attended by the mitigating circumstance akin to voluntary
surrender. As correctly observed by the Sandiganbayan, petitioner restituted the full amount even before the
prosecution could present its evidence. That is borne by the records.
It bears stressing that the full restitution of the amount malversed will not in any way exonerate an accused, as
payment is not one of the elements of extinction of criminal liability. Under the law, the refund of the sum
misappropriated, even before the commencement of the criminal prosecution, does not exempt the guilty
person from liability for the crime.85 At most, then, payment of the amount malversed will only serve as a
mitigating circumstance86 akin to voluntary surrender, as provided for in paragraph 7 of Article 1387 in relation
to paragraph 1088 of the same Article of the Revised Penal Code.
But the Court also holds that aside from voluntary surrender, petitioner is entitled to the mitigating
circumstance of no intention to commit so grave a wrong,89 again in relation to paragraph 10 of Article 13.90
The records bear out that petitioner misappropriated the missing funds under his custody and control because
he was impelled by the genuine love for his brother and his family. Per his admission, petitioner used part of
the funds to pay off a debt owed by his brother. Another portion of the misappropriated funds went to his
medications for his debilitating diabetes.
Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos (P8,000.00) of the funds in less
than one month and a half and said small balance in three (3) months from receipt of demand of COA on
January 5, 1999. Evidently, there was no intention to commit so grave a wrong.
Of course, the end does not justify the means. To condone what petitioner has done because of the nobility of
his purpose or financial emergencies will become a potent excuse for malefactors and open the floodgates for
more corruption in the government, even from "small fry" like him.
The bottom line is a guilty person deserves the penalty given the attendant circumstances and commensurate
with the gravity of the offense committed. Thus, a reduction in the imposable penalty by one degree is in order.
Article 64 of the Revised Penal Code is explicit:
Art. 64. Rules for the application of penalties which contain three periods. In cases in which the penalties
prescribed by law contains three periods, whether it be a single divisible penalty or composed of three
difference penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77,
the courts shall observe for the application of the penalty, the following rules, according to whether there are no
mitigating or aggravating circumstances:
xxxx
5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the
court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances. (Underscoring supplied)

58
Considering that there are two mitigating circumstances, the prescribed penalty is reduced to prision mayor in
its maximum period to reclusion temporal in its medium period, to be imposed in any of its periods. The new
penalty has a range of ten (10) years and one (1) day to seventeen (17) years and four (4) months. Applying
the Indeterminate Sentence Law,91 the maximum term could be ten (10) years and one (1) day of prision
mayor maximum, while the minimum term is again one degree lower92 and could be four (4) years, two (2)
months and one (1) day of prision correccional maximum.
In the 1910 case of U.S. v. Reyes,93 the trial judge entered a judgment of conviction against the accused and
meted to him the penalty of "three years imprisonment, to pay a fine of P1,500.00, and in case of insolvency to
suffer subsidiary imprisonment at the rate of one day for every P2.50 that he failed to pay, which subsidiary
imprisonment, however, should not exceed one third of the principal penalty" and to be "perpetually disqualified
for public office and to pay the costs." This was well within the imposable penalty then under Section 1 of Act
No. 1740,94 which is "imprisonment for not less than two months nor more than ten years and, in the
discretion of the court, by a fine of not more than the amount of such funds and the value of such property."
On appeal to the Supreme Court, the accuseds conviction was affirmed but his sentence was modified and
reduced to six months. The court, per Mr. Justice Torres, reasoned thus:
For the foregoing reasons the several unfounded errors assigned to the judgment appealed from have been
fully refuted, since in conclusion it is fully shown that the accused unlawfully disposed of a portion of the
municipal funds, putting the same to his own use, and to that of other persons in violation of Act. No. 1740, and
consequently he has incurred the penalty therein established as principal of the crime of misappropriation; and
even though in imposing it, it is not necessary to adhere to the rules of the Penal Code, the court in using its
discretional powers as authorized by law, believes that the circumstances present in the commission of crimes
should be taken into consideration, and in the present case the amount misappropriated was refunded at the
time the funds were counted.95 (Underscoring supplied)
We opt to exercise an analogous discretion.
WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003 is AFFIRMED with the
MODIFICATION that petitioner is hereby sentenced to suffer the indeterminate penalty of four (4) years, two
(2) months and one (1) day of prision correccional, as minimum term, to ten (10) years and one (1) day of
prision mayor, as maximum term, with perpetual special disqualification. He is likewise ORDERED to pay a
fine of P72,784.57, the amount equal to the funds malversed.
Costs against petitioner.
SO ORDERED.
RUBEN T. REYES
Associate Justice

WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
*RENATO C. CORONA
Associate Justice

59

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that
the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

60

QUINTO V COMELEC
G.R. No. 189698

February 22, 2010

RESOLUTION
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections
(COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-inintervention, of this Courts December 1, 2009 Decision (Decision).1
The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino
A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of
Republic Act No. 9369,2 Section 66 of the Omnibus Election Code3 and Section 4(a) of COMELEC Resolution
No. 8678,4 mainly on the ground that they violate the equal protection clause of the Constitution and suffer
from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue
discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political
arena.
In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors
submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the
participation of public appointive officials and members of the military in partisan political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to
elective and appointive officials, because such differential treatment rests on material and substantial
distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such
reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration
which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-inintervention which were filed after the Court had rendered its December 1, 2009 Decision.
i. Timeliness of COMELECs Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of the same
rules,6 COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to
move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence,
had until December 17, 2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The
corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was
subsequently filed on December 17, 2009 still within the reglementary period.

61

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest
against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights
of the original parties, and whether or not the intervenors rights may be fully protected in a separate
proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the
following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in
the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding.7
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for
intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on
the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the
Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford
indispensable parties, who have not been impleaded, the right to be heard even after a decision has been
rendered by the trial court,8 when the petition for review of the judgment has already been submitted for
decision before the Supreme Court,9 and even where the assailed order has already become final and
executory.10 In Lim v. Pacquing,11 the motion for intervention filed by the Republic of the Philippines was
allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues
raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court12
after consideration of the appropriate circumstances.13 We stress again that Rule 19 of the Rules of Court is a
rule of procedure whose object is to make the powers of the court fully and completely available for justice.14
Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice.15
We rule that, with the exception of the IBP Cebu City Chapter, all the movants-intervenors may properly
intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009
Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves
the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence
of the public in its system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010
elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet
resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the
assailed Decision, unless it is reversed.

62
Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in
another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part
of the laws of the land.
With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that "this case involves the
constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be
allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before
this Highest Tribunal as it resolves issues of transcendental importance."16
Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a
specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked
interest is, in character, too indistinguishable to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph
of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following
grounds:
(1) They violate the equal protection clause of the Constitution because of the differential treatment of persons
holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a)
without distinction as to whether or not they occupy high/influential positions in the government, and (b) they
limit these civil servants activity regardless of whether they be partisan or nonpartisan in character, or whether
they be in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public
appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the
Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not
unconstitutional, and accordingly reverse our December 1, 2009 Decision.
III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law
Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus
Election Code, any person holding a public appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations,
shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election
Act,17 which repealed Section 67 of the Omnibus Election Code18 and rendered ineffective Section 11 of R.A.
8436 insofar as it considered an elected official as resigned only upon the start of the campaign period
corresponding to the positions for which they are running,19 an elected official is not deemed to have resigned

63
from his office upon the filing of his certificate of candidacy for the same or any other elected office or position.
In fine, an elected official may run for another position without forfeiting his seat.
These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil
service officers and employees from engaging in any electioneering or partisan political campaign.
The intention to impose a strict limitation on the participation of civil service officers and employees in partisan
political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz
during the deliberations of the Constitutional Commission is instructive:
MS. QUESADA.
xxxx
Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or
employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost
the same provision as in the 1973 Constitution. However, we in the government service have actually
experienced how this provision has been violated by the direct or indirect partisan political activities of many
government officials.
So, is the Committee willing to include certain clauses that would make this provision more strict, and which
would deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more
than exhaustive enough to really prevent officers and employees in the public service from engaging in any
form of partisan political activity. But the problem really lies in implementation because, if the head of a
ministry, and even the superior officers of offices and agencies of government will themselves violate the
constitutional injunction against partisan political activity, then no string of words that we may add to what is
now here in this draft will really implement the constitutional intent against partisan political activity. x x x20
(italics supplied)
To emphasize its importance, this constitutional ban on civil service officers and employees is presently
reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8
both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part:
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary action:
xxxx
(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.
xxxx
Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed
Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to
vote nor shall he use his official authority or influence to coerce the political activity of any other person or
body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his
views on current political problems or issues, or from mentioning the names of his candidates for public office
whom he supports: Provided, That public officers and employees holding political offices may take part in

64
political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or
subject them to any of the acts involving subordinates prohibited in the Election Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil
service officers and employees in partisan political activities an election offense, viz.:
SECTION 261. Prohibited Acts. The following shall be guilty of an election offense:
xxxx
(i) Intervention of public officers and employees. Any officer or employee in the civil service, except those
holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police
force, special forces, home defense forces, barangay self-defense units and all other para-military units that
now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign
or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers
and employees in partisan political activities is too plain to be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants
holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials,
notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and
agencies of the Government, including government-owned or controlled corporations with original charters."21
This is because elected public officials, by the very nature of their office, engage in partisan political activities
almost all year round, even outside of the campaign period.22 Political partisanship is the inevitable essence of
a political office, elective positions included.23
The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express
their views on political issues, or mention the names of certain candidates for public office whom they support.
This is crystal clear from the deliberations of the Constitutional Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines
13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND
OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed.
MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was
adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a
guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections.
Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will
amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other
words, the Legislature can always pass a statute which can withhold from any class the right to vote in an
election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited
acts so that those who may want to vote but who are likewise prohibited from participating in partisan political
campaigns or electioneering may vote.
MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the
part of the Committee to disenfranchise any government official or employee. The elimination of the last clause
of this provision was precisely intended to protect the members of the civil service in the sense that they are
not being deprived of the freedom of expression in a political contest. The last phrase or clause might have

65
given the impression that a government employee or worker has no right whatsoever in an election campaign
except to vote, which is not the case. They are still free to express their views although the intention is not
really to allow them to take part actively in a political campaign.24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not
Violate the Equal Protection Clause
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second
proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the
Constitution.
i. Farias, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the
case at bar violate the equal protection clause of the Constitution in Farias, et al. v. Executive Secretary, et
al.25
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the
Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against
appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of
elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned
from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not
repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they
file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view
of having the deemed-resigned provisions "apply equally" to both elected and appointive officials. We held,
however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are
material and significant distinctions between the two classes of officials. Consequently, the contention that
Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed
on the equal protection clause of the Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective
officials gives undue benefit to such officials as against the appointive ones and violates the equal protection
clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable
classification. If the groupings are characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from the other. The Court has explained the nature of the equal
protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited
either in the object to which it is directed or by territory within which it is to operate. It does not demand
absolute equality among residents; it merely requires that all persons shall be treated alike, under like
circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable grounds exist for making a distinction between
those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be

66
removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing
authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No.
292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in
any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective
officials, or officers or employees holding political offices, are obviously expressly allowed to take part in
political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it
proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of
the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not
within the power of the Court to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--vis appointive
officials, is anchored upon material and significant distinctions and all the persons belonging under the same
classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.26
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it
new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is
really "adherence to precedents," mandates that once a case has been decided one way, then another case
involving exactly the same point at issue should be decided in the same manner.27 This doctrine is one of
policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist
Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of litigants and the opposite way between
another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross
injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I
was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a
feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights."
Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the evenhanded administration of justice in the courts.28
Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be
minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues
presented by the case cannot be considered as obiter dictum.29 This rule applies to all pertinent questions that
are presented and resolved in the regular course of the consideration of the case and lead up to the final
conclusion, and to any statement as to the matter on which the decision is predicated.30 For that reason, a
point expressly decided does not lose its value as a precedent because the disposition of the case is, or might
have been, made on some other ground; or even though, by reason of other points in the case, the result
reached might have been the same if the court had held, on the particular point, otherwise than it did.31 As we
held in Villanueva, Jr. v. Court of Appeals, et al.:32
A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to
the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a
decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also,
where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue,
but the court actually decides all such points, the case as an authoritative precedent as to every point decided,
and none of such points can be regarded as having the status of a dictum, and one point should not be denied
authority merely because another point was more dwelt on and more fully argued and considered, nor does a

67
decision on one proposition make statements of the court regarding other propositions dicta.33 (italics
supplied)
ii. Classification Germane to the Purposes of the Law
The Farias ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to all persons or
things without distinction.34 What it simply requires is equality among equals as determined according to a
valid classification.35 The test developed by jurisprudence here and yonder is that of reasonableness,36 which
has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.37
Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and
fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment
of appointive officials vis--vis elected officials is not germane to the purpose of the law, because "whether one
holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.:
For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same
influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past,
elected Vice-Presidents were appointed to take charge of national housing, social welfare development,
interior and local government, and foreign affairs). With the fact that they both head executive offices, there is
no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections.
Under the present state of our law, the Vice-President, in the example, running this time, let us say, for
President, retains his position during the entire election period and can still use the resources of his office to
support his campaign.38
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the
Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."39 In
addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity
as to those included or excluded.40 Nevertheless, as long as "the bounds of reasonable choice" are not
exceeded, the courts must defer to the legislative judgment.41 We may not strike down a law merely because
the legislative aim would have been more fully achieved by expanding the class.42 Stated differently, the fact
that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or
invidious.43 There is no constitutional requirement that regulation must reach each and every class to which it
might be applied;44 that the Legislature must be held rigidly to the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law creates a
classification that is "palpably arbitrary or capricious."45 He must refute all possible rational bases for the
differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,46 such that
the constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly
debatable."47 In the case at bar, the petitioners failed and in fact did not even attempt to discharge this
heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the
following thesis:

68
... [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there
is no reasonably rational reason for the differing treatment.48
In the instant case, is there a rational justification for excluding elected officials from the operation of the
deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the
people.49 It involves the choice or selection of candidates to public office by popular vote.50 Considering that
elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were
excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign
will. In other words, complete deference is accorded to the will of the electorate that they be served by such
officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar
as appointed officials are concerned.
The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law.
For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the
Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the
competing, yet equally compelling, interest of deferring to the sovereign will.51 (emphasis in the original)
In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that
seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in
which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over
another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say
the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis-vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring
but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given
the authority, under our constitutional system, to balance competing interests and thereafter make policy
choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the
deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be
prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This
Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best
state of affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to,
and extensively cited, Mancuso v. Taft.52 This was a decision of the First Circuit of the United States Court of
Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision.
Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is "inextricably linked" with two fundamental freedoms freedom of
expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict
equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force,
the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them
unconstitutional.

69
It then concluded with the exhortation that since "the Americans, from whom we copied the provision in
question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too,
should follow suit."
Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the
United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United
States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter
Carriers AFL-CIO, et al.53 and Broadrick, et al. v. State of Oklahoma, et al.,54 the United States Supreme
Court was faced with the issue of whether statutory provisions prohibiting federal55 and state56 employees
from taking an active part in political management or in political campaigns were unconstitutional as to warrant
facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal
sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the
speech of its employees, the state as employer has interests that differ significantly from those it possesses in
regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of
employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if
the employees expression interferes with the maintenance of efficient and regularly functioning services, the
limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in
ascertaining which positions are to be covered by any statutory restrictions.57 Therefore, insofar as
government employees are concerned, the correct standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions
in question.58
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan
political activities by federal employees must be limited if the Government is to operate effectively and fairly,
elections are to play their proper part in representative government, and employees themselves are to be
sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed
at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described.
They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions
or beliefs, or to interfere with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education,59 the government has an interest in regulating the
conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with
regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between
the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of
the (government), as an employer, in promoting the efficiency of the public services it performs through its
employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the
balance it has so far struck is sustainable by the obviously important interests sought to be served by the
limitations on partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive Branch of the Government, or those
working for any of its agencies, should administer the law in accordance with the will of Congress, rather than
in accordance with their own or the will of a political party. They are expected to enforce the law and execute
the programs of the Government without bias or favoritism for or against any political party or group or the
members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial
execution of the laws-it is essential that federal employees, for example, not take formal positions in political
parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan
political tickets. Forbidding activities like these will reduce the hazards to fair and effective government.

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There is another consideration in this judgment: it is not only important that the Government and its employees
in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if
confidence in the system of representative Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was perhaps the
immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding
Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political
machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were
sufficiently real that substantial barriers should be raised against the party in power-or the party out of power,
for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense,
to man its political structure and political campaigns.
A related concern, and this remains as important as any other, was to further serve the goal that employment
and advancement in the Government service not depend on political performance, and at the same time to
make sure that Government employees would be free from pressure and from express or tacit invitation to vote
in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their
own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the
joint judgment of the Executive and Congress has been that to protect the rights of federal employees with
respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to
attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for
liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that
the prohibitions against active participation in partisan political management and partisan political campaigns
constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a
different view of the realities of political life and Government service; but that is its current view of the matter,
and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political activities is absolute in any event.60 x x x
xxxx
As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of
Congress, so as to comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct
of state employees. Appellants freely concede that such restrictions serve valid and important state interests,
particularly with respect to attracting greater numbers of qualified people by insuring their job security, free
from the vicissitudes of the elective process, and by protecting them from political extortion. Rather,
appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is
unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct
that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert
that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone
else.
We have held today that the Hatch Act is not impermissibly vague.61 We have little doubt that s 818 is similarly
not so vague that men of common intelligence must necessarily guess at its meaning.62 Whatever other
problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of
what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest
language, it prohibits any state classified employee from being an officer or member of a partisan political
club or a candidate for any paid public office. It forbids solicitation of contributions for any political
organization, candidacy or other political purpose and taking part in the management or affairs of any political
party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act,
there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of

71
political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English
language with respect to being both specific and manageably brief, and it seems to us that although the
prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the
public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as
unprotected conduct, and must therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this
manner here.
xxxx
The consequence of our departure from traditional rules of standing in the First Amendment area is that any
enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or
partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected
expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been
employed by the Court sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception
to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that
conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although
such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point
where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To
put the matter another way, particularly where conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly
legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may
exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly,
may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at
political expression which if engaged in by private persons would plainly be protected by the First and
Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or
viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As
indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the
fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state
regulation as the public peace or criminal trespass. This much was established in United Public Workers v.
Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers,
there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting
contributions for partisan candidates, political parties, or other partisan political purposes; becoming members
of national, state, or local committees of political parties, or officers or committee members in partisan political
clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's
partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties;
addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at
the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan
campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political
party or partisan political candidate.

72
x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other
improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto
because some persons arguably protected conduct may or may not be caught or chilled by the statute.
Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated
in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a
reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of
facts," viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to
enforce, the Hatch Acts prohibition against "active participation in political management or political
campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal
employees to run for state and local offices, to participate as delegates in party conventions, and to hold office
in a political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic)
Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States
classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of
federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970
reelection campaign of their superior, and were administratively charged for asking other Corporation
Commission employees to do campaign work or to give referrals to persons who might help in the campaign,
for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a
full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for
nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the
process of enforcing the resign-to-run provision of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different
set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in
the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter
Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the
Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home Rule Charter,
which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or
election to any public office."
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Acts prohibition against "active participation in political management or
political campaigns"63 with respect to certain defined activities in which they desired to engage. The plaintiffs
relevant to this discussion are:
(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among
others, running in local elections for offices such as school board member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough
Councilman in his local community for fear that his participation in a partisan election would endanger his job;
and

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(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election
for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of
violation of the Hatch Act.
The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to
the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or
municipal office is not permissible. The prohibition against political activity extends not merely to formal
announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or
soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that
candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of
such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics
supplied)
Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to
pay compensation to these persons.64
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of
unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel
Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee in the
classified service shall be a candidate for nomination or election to any paid public office" Violation of
Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment
ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no
stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned
virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme
Court. It was thus not surprising for the First Circuit Court of Appeals the same court that decided Mancuso
to hold categorically and emphatically in Magill v. Lynch65 that Mancuso is no longer good law. As we priorly
explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets "Little Hatch Act"
prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any
city office is specifically proscribed,66 the violation being punished by removal from office or immediate
dismissal. The firemen brought an action against the city officials on the ground that that the provision of the
city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the
position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was
a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was
a position which was no longer viable, since the Supreme Court (finding that the governments interest in
regulating both the conduct and speech of its employees differed significantly from its interest in regulating
those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of
government employees were a less drastic means to the same end, deferring to the judgment of Congress,
and applying a "balancing" test to determine whether limits on political activity by public employees
substantially served government interests which were "important" enough to outweigh the employees First
Amendment rights.67
It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was
characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case,
that politically active bureaucrats might use their official power to help political friends and hurt political foes.
Ruled the court:
The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in
even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme

74
Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt
with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers
v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained
Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that
the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy
in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.
xxxx
What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest
balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court
found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have
particular reference to our view that political candidacy was a fundamental interest which could be trenched
upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens
who are not government employees, the Court in Letter Carriers recognized that the government's interest in
regulating both the conduct and speech of its employees differs significantly from its interest in regulating those
of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the
Court gave little weight to the argument that prohibitions against the coercion of government employees were a
less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise
than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".68 It appears
that the government may place limits on campaigning by public employees if the limits substantially serve
government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x
(italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental
interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows:
In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the
Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local
election would not likely be committed to a state or national platform. This observation undoubtedly has
substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political
intrusion into efficient administration could be thought to threaten municipal government: not into broad policy
decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax
assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court
in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political
justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in
privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors
evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here,
party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear
that politically active bureaucrats would use their official power to help political friends and hurt political foes.
This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket
prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of
favoritism is less, for neither friend nor foe is as easily identified.
A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful
political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential.
The district court felt this was only a minor threat since parties had no control over nominations. But in fact
candidates sought party endorsements, and party endorsements proved to be highly effective both in
determining who would emerge from the primary election and who would be elected in the final election. Under
the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket
elections. The charter's authors might reasonably have feared that a politically active public work force would
give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In
municipal elections especially, the small size of the electorate and the limited powers of local government may
inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even

75
when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence
voters or their co-workers improperly; but a more real danger is that a central party structure will mass the
scattered powers of government workers behind a single party platform or slate. Occasional misuse of the
public trust to pursue private political ends is tolerable, especially because the political views of individual
employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse
systematic. Instead of a handful of employees pressured into advancing their immediate superior's political
ambitions, the entire government work force may be expected to turn out for many candidates in every
election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated
use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely
lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve
advancement on their merits and that they be free from both coercion and the prospect of favor from political
activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his
position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections.
But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal
elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public
servants for political ends that a legislature is most likely to see as the primary threat of employees' rights.
Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be
inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials
looking over their shoulders most supervisors will prefer to let employees go their own ways.
In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan
elections if political parties play a large role in the campaigns. In the absence of substantial party involvement,
on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the
employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest
that they would always do so. Even when parties are absent, many employee campaigns might be thought to
endanger at least one strong public interest, an interest that looms larger in the context of municipal elections
than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect
of a subordinate running directly against his superior or running for a position that confers great power over his
superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to
the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The
possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial
political support, are considerable. (citations omitted)
The court, however, remanded the case to the district court for further proceedings in respect of the petitioners
overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less
to be taken in the dark," the court held:
The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely
analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected
conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the
overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly
legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and
how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that
case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide
range of activities, including soliciting contributions for political candidates and becoming a candidate. The
Court found that this combination required a substantial overbreadth approach. The facts of this case are so
similar that we may reach the same result without worrying unduly about the sometimes opaque distinction
between speech and conduct.
The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute
restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns
as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough

76
balancing of the number of valid applications compared to the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as
one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one
invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a
duty to provide the court with some idea of the number of potentially invalid applications the statute permits.
Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of
probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part
on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the
record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political
parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely
nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic
committee.
The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly,
much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the
election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further
efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses
access to a significant number of offices, the candidacy for which by municipal employees would not pose the
possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems
significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations
omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied
upon by the ponencia, has effectively been overruled.69 As it is no longer good law, the ponencias exhortation
that "[since] the Americans, from whom we copied the provision in question, had already stricken down a
similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit" is misplaced and
unwarranted.70
Accordingly, our assailed Decisions submission that the right to run for public office is "inextricably linked" with
two fundamental freedoms those of expression and association lies on barren ground. American case law
has in fact never recognized a fundamental right to express ones political views through candidacy,71 as to
invoke a rigorous standard of review.72 Bart v. Telford73 pointedly stated that "[t]he First Amendment does not
in terms confer a right to run for public office, and this court has held that it does not do so by implication
either." Thus, ones interest in seeking office, by itself, is not entitled to constitutional protection.74 Moreover,
one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by running
for an elective position, one is advancing the political ideas of a particular set of voters.75
Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not
violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental
interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii)
avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful
political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free
from both coercion and the prospect of favor from political activity). These are interests that are important
enough to outweigh the non-fundamental right of appointive officials and employees to seek elective
office.1avvphi1
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and Morial, et al. v.
Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent. Maintaining that resign-to-run
provisions are valid only when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to
specified or particular officials, as distinguished from all others,78 under a classification that is germane to the
purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision,
and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid

77
classification. Directed, as they were, to particular officials, they were not overly encompassing as to be
overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these
cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the
questioned provisions were found valid precisely because the Court deferred to legislative judgment and found
that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the
equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why
some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States
Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their
positions if they become candidates for any other elected office, unless the unexpired portion of the current
term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those
imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court
found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy,
but because of the manner in which the offices are classified. According to the District Court, the classification
system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some
elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that
65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational
predicate to the classification scheme.
The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this
Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned
by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the
1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four
years. The provision also staggered the terms of other offices so that at least some county and local offices
would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In
that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in
home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of
extending the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That
the State did not go further in applying the automatic resignation provision to those officeholders whose terms
were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's
lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate
simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one
elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other
officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose
of denying access to the political process to identifiable classes of potential candidates. (citations omitted and
italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of
restrictions on the right of public employees to become candidates for public office" out of context. A correct
reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as
each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis
the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are unquestionably entitled to the
protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that
public employees may be prohibited from expressing their private views on controversial topics in a manner
that does not interfere with the proper performance of their public duties. In today's decision, there is no
blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do
we approve any general restrictions on the political and civil rights of judges in particular. Our holding is

78
necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his
office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the
achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a
requirement offends neither the first amendment's guarantees of free expression and association nor the
fourteenth amendment's guarantee of equal protection of the laws. (italics supplied)
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its employment positions require
restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted
for attempting to limit the positions upon which such restrictions are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not
Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus
Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two
respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard
for the type of position being held by the employee seeking an elective post and the degree of influence that
may be attendant thereto;79 and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without
due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the
national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Valid
According to the assailed Decision, the challenged provisions of law are overly broad because they apply
indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being
held by the employee running for elective office and the degree of influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant only when the
incumbent appointive official running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government
posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse
perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers"
so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power."80 As elucidated in
our prior exposition:81
Attempts by government employees to wield influence over others or to make use of their respective positions
(apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed
in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to
discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts,
when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its
own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various
levels of the bureaucracy.

79
[T]he avoidance of such a "politically active public work force" which could give an emerging political
machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the
candidacies of all appointive public officials without further distinction as to the type of positions being held by
such employees or the degree of influence that may be attendant thereto. (citations omitted)
ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are overly broad because they are made
to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of
elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or
barangay level.
This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the
temptations it fosters are sufficiently different from those involved in an office removed from regular party
politics [so as] to warrant distinctive treatment,"82 so that restrictions on candidacy akin to those imposed by
the challenged provisions can validly apply only to situations in which the elective office sought is partisan in
character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan
elective offices, the challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged
overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to
the filing of certificates of candidacy and nomination of official candidates of registered political parties, in
connection with the May 10, 2010 National and Local Elections.83 Obviously, these rules and guidelines,
including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10,
2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear
that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for
partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth
challenge leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in
conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to
apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay offices, since these
are the only elections in this country which involve nonpartisan public offices.84
In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985,
Congress has intended that these nonpartisan barangay elections be governed by special rules, including a
separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said
provision states:
Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the
commencement of the election period but not later than the day before the beginning of the campaign period in
a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a
candidate.
xxxx
Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or
military service, including those in government-owned or-controlled corporations, shall be considered
automatically resigned upon the filing of certificate of candidacy for a barangay office.

80

Since barangay elections are governed by a separate deemed resignation rule, under the present state of law,
there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election
Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one.
For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the
pertinent proviso in Section 13 of RA 9369 must also fail. 85
In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election
Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections
for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial
imprimatur, because the general proposition of the relevant US cases on the matter is simply that the
government has an interest in regulating the conduct and speech of its employees that differs significantly from
those it possesses in connection with regulation of the speech of the citizenry in general.86
Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad,
particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only
be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep.87
In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things,
a rough balancing of the number of valid applications compared to the number of potentially invalid
applications.88 In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched
does not deserve as much weight as one that is probable.89 The question is a matter of degree.90 Thus,
assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a
statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge
presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid
elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to
appointive employees) that may in all probability result from the enforcement of the statute.91
The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v.
Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark,92 especially since an
overbreadth finding in this case would effectively prohibit the State from enforcing an otherwise valid measure
against conduct that is admittedly within its power to proscribe.93
This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the
overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the
right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and
only as a last resort.94
In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the
court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due
to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing
some unprotected speech or conduct to go unpunished.95 Facial overbreadth has likewise not been invoked
where a limiting construction could be placed on the challenged statute, and where there are readily apparent
constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute.96
In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office,
even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected
candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.a1f
In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold
predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them
against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to

81
proscribe.97 Instead, the more prudent approach would be to deal with these conceivably impermissible
applications through case-by-case adjudication rather than through a total invalidation of the statute itself.98
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration,
intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of
Candidacy without relinquishing their posts.99 Several COMELEC election officers had likewise filed their
Certificates of Candidacy in their respective provinces.100 Even the Secretary of Justice had filed her
certificate of substitution for representative of the first district of Quezon province last December 14, 2009101
even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors,102
who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been
spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot
allow the tilting of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which
merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for
Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition;
and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution
No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section
66 of the Omnibus Election Code.
SO ORDERED.
REYNATO S. PUNO
Chief Justice

82

THE PHILIPPINE JUDGES ASSOCIATION v PETE PRADO

G.R. No. 105371 November 11, 1993
CRUZ, J.:
The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the petitioners that
this hallmark of republicanism is impaired by the statute and circular they are here challenging. The Supreme
Court is itself affected by these measures and is thus an interested party that should ordinarily not also be a
judge at the same time. Under our system of government, however, it cannot inhibit itself and must rule upon
the challenge, because no other office has the authority to do so. We shall therefore act upon this matter not
with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness.
The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the Philippine Postal
Corporation through its Circular No.
92-28. These measures withdraw the franking privilege from the Supreme Court, the Court of Appeals, the
Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts, and the Land Registration
Commission and its Registers of Deeds, along with certain other government offices.
The petitioners are members of the lower courts who feel that their official functions as judges will be
prejudiced by the above-named measures. The National Land Registration Authority has taken common cause
with them insofar as its own activities, such as sending of requisite notices in registration cases, affect judicial
proceedings. On its motion, it has been allowed to intervene.
The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title embraces more than
one subject and does not express its purposes; (2) it did not pass the required readings in both Houses of
Congress and printed copies of the bill in its final form were not distributed among the members before its
passage; and (3) it is discriminatory and encroaches on the independence of the Judiciary.
We approach these issues with one important principle in mind, to wit, the presumption of the constitutionality
of statutes. The theory is that as the joint act of the Legislature and the Executive, every statute is supposed to
have first been carefully studied and determined to be constitutional before it was finally enacted. Hence,
unless it is clearly shown that it is constitutionally flawed, the attack against its validity must be rejected and the
law itself upheld. To doubt is to sustain.
I
We consider first the objection based on Article VI, Sec. 26(l), of the Constitution providing that "Every bill
passed by the Congress shall embrace only one subject which shall be expressed in the title thereof."
The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling" legislation; (2) to prevent surprise or
fraud upon the legislature by means of provisions in bills of which the title gives no intimation, and which might
therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people,
through such publication of legislative proceedings as is usually made, of the subject of legislation that is being
considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they
shall so desire. 1
It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the franking privilege
from the Judiciary is not expressed in the title of the law, nor does it reflect its purposes.

83
R.A. No. 7354 is entitled "An Act Creating the Philippine Postal Corporation, Defining its Powers, Functions
and Responsibilities, Providing for Regulation of the Industry and for Other Purposes Connected Therewith."
The objectives of the law are enumerated in Section 3, which provides:
The State shall pursue the following objectives of a nationwide postal system:
a) to enable the economical and speedy transfer of mail and other postal matters, from sender to addressee,
with full recognition of their privacy or confidentiality;
b) to promote international interchange, cooperation and understanding through the unhampered flow or
exchange of postal matters between nations;
c) to cause or effect a wide range of postal services to cater to different users and changing needs, including
but not limited to, philately, transfer of monies and valuables, and the like;
d) to ensure that sufficient revenues are generated by and within the industry to finance the overall cost of
providing the varied range of postal delivery and messengerial services as well as the expansion and
continuous upgrading of service standards by the same.
Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads as follows:
Sec. 35. Repealing Clause. All acts, decrees, orders, executive orders, instructions, rules and regulations or
parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.
All franking privileges authorized by law are hereby repealed, except those provided for under Commonwealth
Act No. 265, Republic Acts Numbered 69, 180, 1414, 2087 and 5059. The Corporation may continue the
franking privilege under Circular No. 35 dated October 24, 1977 and that of the Vice President, under such
arrangements and conditions as may obviate abuse or unauthorized use thereof.
The petitioners' contention is untenable. We do not agree that the title of the challenged act violates the
Constitution.
The title of the bill is not required to be an index to the body of the act, or to be as comprehensive as to cover
every single detail of the measure. It has been held that if the title fairly indicates the general subject, and
reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people,
there is sufficient compliance with the constitutional requirement. 2
To require every end and means necessary for the accomplishment of the general objectives of the statute to
be expressed in its title would not only be unreasonable but would actually render legislation impossible. 3 As
has been correctly explained:
The details of a legislative act need not be specifically stated in its title, but matter germane to the subject as
expressed in the title, and adopted to the accomplishment of the object in view, may properly be included in the
act. Thus, it is proper to create in the same act the machinery by which the act is to be enforced, to prescribe
the penalties for its infraction, and to remove obstacles in the way of its execution. If such matters are properly
connected with the subject as expressed in the title, it is unnecessary that they should also have special
mention in the title (Southern Pac. Co. v. Bartine, 170 Fed. 725).
This is particularly true of the repealing clause, on which Cooley writes: "The repeal of a statute on a given
subject is properly connected with the subject matter of a new statute on the same subject; and therefore a
repealing section in the new statute is valid, notwithstanding that the title is silent on the subject. It would be

84
difficult to conceive of a matter more germane to an act and to the object to be accomplished thereby than the
repeal of previous legislations connected therewith." 4
The reason is that where a statute repeals a former law, such repeal is the effect and not the subject of the
statute; and it is the subject, not the effect of a law, which is required to be briefly expressed in its title. 5 As
observed in one case, 6 if the title of an act embraces only one subject, we apprehend it was never claimed
that every other act which repeals it or alters by implication must be mentioned in the title of the new act. Any
such rule would be neither within the reason of the Constitution, nor practicable.
We are convinced that the withdrawal of the franking privilege from some agencies is germane to the
accomplishment of the principal objective of R.A. No. 7354, which is the creation of a more efficient and
effective postal service system. Our ruling is that, by virtue of its nature as a repealing clause, Section 35 did
not have to be expressly included in the title of the said law.
II
The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking privilege from
the petitioners and this Court under E.O. 207, PD 1882 and PD 26 was not included in the original version of
Senate Bill No. 720 or House Bill No. 4200. As this paragraph appeared only in the Conference Committee
Report, its addition, violates Article VI, Sec. 26(2) of the Constitution, reading as follows:
(2) No bill passed by either House shall become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to its Members three days before its passage,
except when the President certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall
be taken immediately thereafter, and the yeasand nays entered in the Journal.
The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that amendment to
any bill when the House and the Senate shall have differences thereon may be settled by a conference
committee of both chambers. They stress that Sec. 35 was never a subject of any disagreement between both
Houses and so the second paragraph could not have been validly added as an amendment.
These argument are unacceptable.
While it is true that a conference committee is the mechanism for compromising differences between the
Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus:
A conference committee may, deal generally with the subject matter or it may be limited to resolving the
precise differences between the two houses. Even where the conference committee is not by rule limited in its
jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into
the conference bill. But occasionally a conference committee produces unexpected results, results beyond its
mandate, These excursions occur even where the rules impose strict limitations on conference committee
jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law
and Process: In a Nutshell, 1986 Ed., p.81).
It is a matter of record that the conference Committee Report on the bill in question was returned to and duly
approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its
certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of
Representatives as having been duly passed by both Houses of Congress. It was then presented to and
approved by President Corazon C. Aquino on April 3, 1992.

85
Under the doctrine of separation powers, the Court may not inquire beyond the certification of the approval of a
bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez 7 laid down the rule
that the enrolled bill, is conclusive upon the Judiciary (except in matters that have to be entered in the journals
like the yeas andnays on the final reading of the
bill). 8 The journals are themselves also binding on the Supreme Court, as we held in the old (but still valid)
case of U.S. vs. Pons, 9 where we explained the reason thus:
To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear
and explicit, would be to violate both the, letter and spirit of the organic laws by which the Philippine
Government was brought into existence, to invade a coordinate and independent department of the
Government, and to interfere with the legitimate powers and functions, of the Legislature.
Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made
upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its final form
were not distributed among the members of each House. Both the enrolled bill and the legislative journals
certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26(2) of the Constitution. We
are bound by such official assurances from a coordinate department of the government, to which we owe, at
the very least, a becoming courtesy.
III
The third and most serious challenge of the petitioners is based on the equal protection clause.
It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking privilege from the
Judiciary, it retains the same for the President of the Philippines, the Vice President of the Philippines;
Senators and Members of the House of Representatives, the Commission on Elections; former Presidents of
the Philippines; the National Census and Statistics Office; and the general public in the filing of complaints
against public offices and officers. 10
The respondents counter that there is no discrimination because the law is based on a valid classification in
accordance with the equal protection clause. In fact, the franking privilege has been withdrawn not only from
the Judiciary but also the Office of Adult Education, the Institute of National Language; the
Telecommunications Office; the Philippine Deposit Insurance Corporation; the National Historical Commission;
the Armed Forces of the Philippines; the Armed Forces of the Philippines Ladies Steering Committee; the City
and Provincial Prosecutors; the Tanodbayan (Office of Special Prosecutor); the Kabataang Barangay; the
Commission on the Filipino Language; the Provincial and City Assessors; and the National Council for the
Welfare of Disabled Persons. 11
The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination
offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in
Article III Sec. 1., of the Constitution to provide for a more, specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.
According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed, 12 Similar subjects,
in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate
against others.

86
The equal protection clause does not require the universal application of the laws on all persons or things
without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law
prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the
liberty of adults. What the clause requires is equality among equals as determined according to a valid
classification. By classification is meant the grouping of persons or things similar to each other in certain
particulars and different from all others in these same particulars. 13
What is the reason for the grant of the franking privilege in the first place? Is the franking privilege extended to
the President of the Philippines or the Commission on Elections or to former Presidents of the Philippines
purely as acourtesy from the lawmaking body? Is it offered because of the importance or status of the grantee
or because of its need for the privilege? Or have the grantees been chosen pell-mell, as it were, without any
basis at all for the selection?
We reject outright the last conjecture as there is no doubt that the statute as a whole was carefully deliberated
upon, by the political departments before it was finally enacted. There is reason to suspect, however, that not
enough care or attention was given to its repealing clause, resulting in the unwitting withdrawal of the franking
privilege from the Judiciary.
We also do not believe that the basis of the classification was mere courtesy, for it is unimaginable that the
political departments would have intended this serious slight to the Judiciary as the third of the major and equal
departments the government. The same observations are made if the importance or status of the grantee was
the criterion used for the extension of the franking privilege, which is enjoyed by the National Census and
Statistics Office and even some private individuals but not the courts of justice.
In our view, the only acceptable reason for the grant of the franking privilege was the perceived need of the
grantee for the accommodation, which would justify a waiver of substantial revenue by the Corporation in the
interest of providing for a smoother flow of communication between the government and the people.
Assuming that basis, we cannot understand why, of all the departments of the government, it is the Judiciary,
that has been denied the franking privilege. There is no question that if there is any major branch of the
government that needs the privilege, it is the Judicial Department, as the respondents themselves point out.
Curiously, the respondents would justify the distinction on the basis precisely of this need and, on this basis,
deny the Judiciary the franking privilege while extending it to others less deserving.
In their Comment, the respondents point out that available data from the Postal Service Office show that from
January 1988 to June 1992, the total volume of frank mails amounted to P90,424,175.00. Of this amount, frank
mails from the Judiciary and other agencies whose functions include the service of judicial processes, such as
the intervenor, the Department of Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank
mails coming fromthe Judiciary amounted to P73,574,864.00, and those coming from the petitioners reached
the total amount of P60,991,431.00. The respondents' conclusion is that because of this considerable volume
of mail from the Judiciary, the franking privilege must be withdrawn from it.
The argument is self-defeating. The respondents are in effect saying that the franking privilege should be
extended only to those who do not need it very much, if at all, (like the widows of former Presidents) but not to
those who need it badly (especially the courts of justice). It is like saying that a person may be allowed
cosmetic surgery although it is not really necessary but not an operation that can save his life.
If the problem of the respondents is the loss of revenues from the franking privilege, the remedy, it seems to
us, is to withdraw it altogether from all agencies of government, including those who do not need it. The
problem is not solved by retaining it for some and withdrawing it from others, especially where there is no

87
substantial distinction between those favored, which may or may not need it at all, and the Judiciary, which
definitely needs it. The problem is not solved by violating the Constitution.
In lumping the Judiciary with the other offices from which the franking privilege has been withdrawn, Section 35
has placed the courts of justice in a category to which it does not belong. If it recognizes the need of the
President of the Philippines and the members of Congress for the franking privilege, there is no reason why it
should not recognize a similar and in fact greater need on the part of the Judiciary for such privilege. While we
may appreciate the withdrawal of the franking privilege from the Armed Forces of the Philippines Ladies
Steering Committee, we fail to understand why the Supreme Court should be similarly treated as that
Committee. And while we may concede the need of the National Census and Statistics Office for the franking
privilege, we are intrigued that a similar if not greater need is not recognized in the courts of justice.
(On second thought, there does not seem to be any justifiable need for withdrawing the privilege from the
Armed Forces of the Philippines Ladies Steering Committee, which, like former Presidents of the Philippines or
their widows, does not send as much frank mail as the Judiciary.)
It is worth observing that the Philippine Postal Corporation, as a government-controlled corporation, was
created and is expected to operate for the purpose of promoting the public service. While it may have been
established primarily for private gain, it cannot excuse itself from performing certain functions for the benefit of
the public in exchange for the franchise extended to it by the government and the many advantages it enjoys
under its charter.14 Among the services it should be prepared to extend is free carriage of mail for certain
offices of the government that need the franking privilege in the discharge of their own public functions.
We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos, 55% of which
is supplied by the Government, and that it derives substantial revenues from the sources enumerated in
Section 10, on top of the exemptions it enjoys. It is not likely that the retention of the franking privilege of the
Judiciary will cripple the Corporation.
At this time when the Judiciary is being faulted for the delay in the administration of justice, the withdrawal from
it of the franking privilege can only further deepen this serious problem. The volume of judicial mail, as
emphasized by the respondents themselves, should stress the dependence of the courts of justice on the
postal service for communicating with lawyers and litigants as part of the judicial process. The Judiciary has
the lowest appropriation in the national budget compared to the Legislative and Executive Departments; of the
P309 billion budgeted for 1993, only .84%, or less than 1%, is alloted for the judiciary. It should not be hard to
imagine the increased difficulties of our courts if they have to affix a purchased stamp to every process they
send in the discharge of their judicial functions.
We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a valid exercise of
discretion by the Legislature under the police power. On the contrary, we find its repealing clause to be a
discriminatory provision that denies the Judiciary the equal protection of the laws guaranteed for all persons or
things similarly situated. The distinction made by the law is superficial. It is not based on substantial
distinctions that make real differences between the Judiciary and the grantees of the franking privilege.
This is not a question of wisdom or power into which the Judiciary may not intrude. It is a matter of
arbitrariness that this Court has the duty and power to correct.
IV
In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title and that it was
not passed in accordance with the prescribed procedure. However, we annul Section 35 of the law as violative

88
of Article 3, Sec. 1, of the Constitution providing that no person shall "be deprived of the equal protection of
laws."
We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While ruling
against the discrimination in this case, we may ourselves be accused of similar discrimination through the
exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial conduct, however
undeserved, is a fact of life in the political system that we are prepared to accept.. As judges, we cannot
debate with our detractors. We can only decide the cases before us as law imposes on us the duty to be fair
and our own conscience gives us the light to be right.
ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared
UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking privilege from the
Supreme Court, the Court of Appeals, the Regional trail Courts, the Municipal trial Courts, and the National
Land Registration Authority and its Register of Deeds to all of which offices the said privilege shall be
RESTORED. The temporary restraining order dated June 2, 1992, is made permanent.
SO ORDERED.

89

ISHMAEL HIMAGAN v PEOPLE OF THE PHILIPPINES

G.R. No. 113811

October 7, 1994

KAPUNAN, J.:
Petitioner, a policeman assigned with the medical company of the Philippine National Police Regional
Headquarters at Camp Catitigan, Davao City, was implicated in the killing of Benjamin Machitar, Jr. and the
attempted murder of Bernabe Machitar. After the informations for murder 1 and attempted murder 2 were filed
with the Regional Trial Court, Branch 11, Davao City, on September 16, 1992, the trial court issued an Order
suspending petitioner until the termination of the case on the basis of Section 47, R.A. 6975, otherwise known
as Department of Interior and Local Government Act of 1990, which provides:
Sec. 47.
Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or information
sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by
law is six (6) years and one (1) day or more, the court shall immediately suspend the accused from office until
the case is terminated. Such case shall be subject to continuous trial and shall be terminated within ninety (90)
days from arraignment of the accused (Emphasis ours).
On October 11, 1993, petitioner filed a motion to lift the order for his suspension, 3 relying on Section 42 of
P.D. 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days and, also, on our
ruling in Deloso v. Sandiganbayan, 4 and Layno v. Sandiganbayan. 5 In his order dated December 14, 1993 6
respondent judge denied the motion pointing out that under Section 47 of R.A. 6975, the accused shall be
suspended from office until his case is terminated. The motion for reconsideration of the order of denial was,
likewise, denied. 7 Hence, the petition for certiorari and mandamus to set aside the orders of respondent
Judge and to command him to lift petitioner's preventive suspension.
We find the petition devoid of merit.
There is no question that the case of petitioner who is charged with murder and attempted murder under the
Revised Penal Code falls squarely under Sec. 47 of RA 6975 which specifically applies to members of the
PNP. In dispute however, is whether the provision limits the period of suspension to 90 days, considering that
while the first sentence of Sec. 47 provides that the accused who is charged with grave felonies where the
penalty imposed is six (6) years and one (1) day shall be suspended from office "until the case is terminated",
the second sentence of the same section mandates that the case, which shall be subject to continuous trial,
shall be terminated within 90 days from the arraignment of the accused.
Petitioner posits that as a member of the Philippine National Police, under Sec. 91 of RA 6975 which reads:
Sec. 91.
The Civil Service Law and its implementing rules and regulations shall apply to all personnel of
the Department.
he is covered by the Civil Service Law, particularly Sec. 42 of PD 807 of the Civil Service Decree, which limits
the maximum period of suspension to ninety (90) days, thus:
Sec. 42.
Lifting of Preventive Suspension Pending Administrative Investigation. When the
administrative case against the officer or employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is
not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That
when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the
period of delay shall not be counted in computing the period of suspension herein provided.
He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law and
would be a violation of his constitutional right to equal protection of laws. He further asserts that the
requirements in

90
Sec. 47 of R.A. 6975 that "the court shall immediately suspend the accused from office until the case is
terminated" and the succeeding sentence, "Such case shall be subject to continuous trial and shall be
terminated within ninety (90) days from arraignment of the accused" are both substantive and should be taken
together to mean that if the case is not terminated within 90 days, the period of preventive suspension must be
lifted because of the command that the trial must be terminated within ninety (90) days from arraignment.
We disagree.
First. The language of the first sentence of Sec. 47 of R.A. 6975 is clear, plain and free from ambiguity. It gives
no other meaning than that the suspension from office of the member of the PNP charged with grave offense
where the penalty is six years and one day or more shall last until the termination of the case. The suspension
cannot be lifted before the termination of the case. The second sentence of the same Section providing that
the trial must be terminated within ninety (90) days from arraignment does not qualify or limit the first sentence.
The two can stand independently of each other. The first refers to the period of suspension. The second deals
with the time frame within which the trial should be finished.
Suppose the trial is not terminated within ninety days from arraignment, should the suspension of accused be
lifted? The answer is certainly no. While the law uses the mandatory word "shall" before the phrase "be
terminated within ninety (90) days", there is nothing in R.A. 6975 that suggests that the preventive suspension
of the accused will be lifted if the trial is not terminated within that period. Nonetheless, the Judge who fails to
decide the case within the period without justifiable reason may be subject to administrative sanctions and, in
appropriate cases where the facts so warrant, to criminal 8 or civil liability. 9 If the trial is unreasonably delayed
without fault of the accused such that he is deprived of his right to a speedy trial, he is not without a remedy.
He may ask for the dismissal of the case. Should the court refuse to dismiss the case, the accused can compel
its dismissal by certiorari, prohibition or mandamus, or secure his liberty by habeas corpus. 10
Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows that it
refers to the lifting of preventive suspension in pending administrative investigation, not in criminal cases, as
here. What is more, Section 42 expressly limits the period of preventive suspension to ninety (90) days. Sec.
91 of R.A. 6975 which states that "The Civil Service Law and its implementing rules shall apply to all personnel
of the Department" simply means that the provisions of the Civil Service Law and its implementing rules and
regulations are applicable to members of the Philippine National Police insofar as the provisions, rules and
regulations are not inconsistent with
R.A. 6975. Certainly, Section 42 of the Civil Service Decree which limits the preventive suspension to ninety
(90) days cannot apply to members of the PNP because Sec. 47 of R.A. 6995 provides differently, that is, the
suspension where the penalty imposed by law exceeds six (6) years shall continue until the case is terminated.
Third. Petitioner's reliance on Layno and Deloso is misplaced. These cases all stemmed from charges in
violation of R.A. 3019 (1060), otherwise known as the Anti-Graft and Corrupt Practices Act which, unlike
R.A. 6975, is silent on the duration of the preventive suspension. Sec. 13 of R.A. 3019 reads as follows:
Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid
information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court,
shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or
gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries
and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings
have been filed against him.
In the case of Layno, the duly elected mayor of Lianga, Surigao del Sur, was preventively suspended after an
information was filed against him for offenses under R.A. 3019 (1060), the Anti-Graft Corrupt Practices Act. He
had been suspended for four (4) months at the time he filed a motion to lift his preventive suspension. We held
that his indefinite preventive suspension violated the "equal protection clause" and shortened his term of office.
Thus:

91
2.
Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not
expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according
to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his
functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been
unable to. It is a basic assumption of the electoral process implicit in the right of suffrage that the people are
entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them could,
of course, be proceeded against administratively or, as in this instance, criminally. In either case, his culpability
must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of
innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of
time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold
office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only
victim. There is injustice inflicted likewise on the people of Lianga. They were deprived of the services of the
man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted
continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer oppression.
A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order
of suspension should be lifted.
3.
Nor is it solely the denial of procedural due process that is apparent. There is likewise an equal
protection question. If the case against petitioner Layno were administrative in character the Local Government
Code would be applicable. It is therein clearly provided that while preventive suspension is allowable for the
causes therein enumerated, there is this emphatic limitation on the duration thereof: "In all cases, preventive
suspension shall not extend beyond sixty days after the start of said suspension." It may be recalled that the
principle against indefinite suspension applies equally to national government officials. So it was held in the
leading case of Garcia v. Hon. Executive Secretary. According to the opinion of Justice Barrera: "To adopt the
theory of respondents that an officer appointed by the President, facing administrative charges, can be
preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can,
in effect, be the penalty itself without a finding of guilt after due hearing, contrary to the express mandate of the
Constitution and the Civil Service law." Further: "In the guise of a preventive suspension, his term of office
could be shortened and he could in effect, be removed without a finding of a cause duly established after due
hearing, in violation of the Constitution. Clearly then, the policy of the law mandated by the Constitution frowns
at a suspension of indefinite duration. In this particular case, the mere fact that petitioner is facing a charge
under the Anti-Graft and Corrupt Practices Act does not justify a different rule of law. To do so would be to
negate the safeguard of the equal protection guarantee. 11
The case of Deloso, likewise, involved another elective official who
was preventively suspended as provincial governor, also under RA 3019 the Anti-Graft Law. This Court, faced
with similar factual circumstances as in Layno, applied the ruling in the latter case "in relation to the principles
of due process and equal protection."
It is readily apparent that Section 13 of R.A. 3019 upon which the preventive suspension of the accused in
Layno and Deloso was based is silent with respect to the duration of the preventive suspension, such that the
suspension of the accused therein for a prolonged and unreasonable length of time raised a due process
question. Not so in the instant case. Petitioner is charged with murder under the Revised Penal Code and it is
undisputed that he falls squarely under Sec. 47 of R.A. 6975 which categorically states that his suspension
shall last until the case is terminated. The succeeding sentence of the same section requires the case to be
subjected to continuous trial which shall be terminated within ninety (90) days from arraignment of the
accused. As previously emphasized, nowhere in the law does it say that after the lapse of the 90-day period for
trial, the preventive suspension should be lifted. The law is clear, the ninety (90) days duration applies to the
trial of the case not to the suspension. Nothing else should be read into the law. When the words and phrases
of the statute are clear and unequivocal, their meaning determined from the language employed and the
statute must be taken to mean exactly what it says. 12

92
Fourth. From the deliberations of the Bicameral Conference Committee on National Defense relative to the bill
that became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the period of suspension is
concerned becomes all the more clear. We quote:
So other than that in that particular section, ano ba itong "Jurisdiction in Criminal Cases?" What is this all
about?
REP. ZAMORA.

In case they are charged with crimes.

THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is administrative, no. Now, if it is charged with a
crime, regular courts.
SEN. GONZALES.

Ano, the courts mismo ang magsasabing . . .

THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.

REP. ZAMORA.

The jurisdiction if there is robbery.

THE CHAIRMAN (SEN. MACEDA). Okay. "Preventive Suspension Pending Criminal Case. Upon the filing of
a complaint or informations sufficient in form and substance against a member of the PNP for grave felonies
where the penalty imposed by law is six years and one day or more, the court shall immediately suspend the
accused from the office until the case is terminated."
REP. ALBANO.

Where are we now Mr. Chairman.

THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years and one day or more.
SEN. SAGUISAG.

Kung five years and litigation ng Supreme Court, ganoon ba and . . .?

THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay disciplinary iyon e.
SEN. PIMENTEL.

Anong page iyan, Rene?

THE CHAIRMAN (SEN. MACEDA). Page 29 Preventive Suspension.

REP. GUTANG.
Ang complaint kasi ng mga tao, pagka may pulis na may criminal case at may baril pa
rin at nag-uuniforme, hindi magandang tingnan e. So parang natatakot iyong mga witnesses.
SEN. GONZALES.

Anyway, kung ma-exempt na rito naman siya e.

REP. GUTANG.

Mayroong entitlement to reinstatement and pay. . . .

xxx

xxx

xxx

SEN. PIMENTEL.
Dito sa "Preventive Suspension Pending Criminal Case." Okay ito but I think we should
also mandate the early termination of the case. Ibig sabihin, okay, hindi ba "the suspension of the accused
from office until the case is terminated?" Alam naman natin ang takbo ng mga kaso rito sa ating bansa e.
REP. ZAMORA.

Twenty days, okay na.

SEN. PIMENTEL.
Hindi, and ibig kong sabihin, let us just assume that a case can be, as Rene pointed out,
can run to six years bago
ma-terminate, sometimes ten years pa nga e. Okay, but maybe we should mandate. . .

93
REP. ZAMORA.

Continuous hearing.

SEN. PIMENTEL.

Not only that, but the case must be terminated within a period.

REP. ALBANO.

Ninety days na ho sa Supreme Court the trial.

SEN. PIMENTEL.

Ha?

REP. ALBANO.

The trial must be done within ninety days,

SEN. PIMENTEL.
Ang ibig kong sabihin kung maari sanang ilagay rito that the case shall also be
terminated in one year from the time . . . aywan ko kung kaya nating gawin iyon.
REP. ALBANO.

One solution, Mr. Chairman.

THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has all been held as directory even if you put
it in the law?
SEN. PIMENTEL.

I know, but, iyon na nga, we are looking at some solution to a particular situation.

SEN. ANGARA.

Let's have continuous hearing and be terminated not later than ninety days.

REP. ZAMORA.
same thing.

Ang point ni Ernie, that's really only the directory. All of these, well, looks exactly the

SEN. ANGARA.
quick, swift.

No, but at least, we will shorten it up in a case like this. We are really keen on having it

SEN. PIMENTEL.

Swift justice.

REP. ALBANO.

Mr. Chairman.

THE CHAIRMAN. (SEN. MACEDA). Yes.

REP. ALBANO.
Following the Veloso case in Anti-graft cases before the Sandiganbayan, the preventive
suspension is only ninety days. In no case shall it go beyond ninety days which can also be applicable here
because this is a preventive suspension.
SEN. PIMENTEL.

No, because you can legislate at least.

SEN. SAGUISAG.
graft in nature. . .

But then the case may be anti-graft ha. The case filed against a policeman may be anti-

SEN. PIMENTEL.

Correct, correct, but is that a constitutional provision? Is it?

REP. ALBANO.

No, but as a standard procedure.

SEN. PIMENTEL.

Then you can legislate.

THE CHAIRMAN (SEN. MACEDA). No, because this particular provision is for criminal cases. I know antigraft is a criminal case but here we are talking, let's say, of murder, rape, treason, robbery. That's why it is in
that context that there is a difference between a purely anti-graft case and a criminal case which could be a
serious case since it is six years and one day or more, so it must be already a grave felony.

94
xxx

xxx

xxx

REP. ALBANO.

...

What I mean to say is, preventive suspension, we can use the

Veloso case.
THE CHAIRMAN (SEN. MACEDA). No, that's too short, that's what I am saying. The feeling here is, for
policeman, we have to be stricter especially if it is a criminal case.
What Rene is just trying to say is, he is agreeable that the suspension is until the case is terminated, but he
just wants some administrative balancing to expedite it. So let us study what kind of language could be done
along that line. So just on the National Police Commission . . .
SEN. ANGARA.

Can I suggest a language that may reflect. . .

THE CHAIRMAN (SEN. MACEDA). Okay, please.

SEN. ANGARA.
whatever we agree.

"Such case shall be subject to continuous trial and be terminated not later than . . ."

THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that.

So if there are any further amendments to Chapter 2 on the National Police Commission. . . . . . 13
The foregoing discussions reveal the legislative intent to place on preventive suspension a member of the PNP
charged with grave felonies where the penalty imposed by law exceeds six years of imprisonment and which
suspension continues until the case against him is terminated.
The reason why members of the PNP are treated differently from the other classes of persons charged
criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that
policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses
against them, as succinctly brought out in the legislative discussions.
If a suspended policeman criminally charged with a serious offense is reinstated to his post while his case is
pending, his victim and the witnesses against him are obviously exposed to constant threat and thus easily
cowed to silence by the mere fact that the accused is in uniform and armed. The imposition of preventive
suspension for over 90 days under Section 47 of
R.A. 6975 does not violate the suspended policeman's constitutional right to equal protection of the laws.
The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination
and oppression based on inequality. Recognizing the existence of real differences among men, the equal
protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to the privileges conferred and liabilities enforced. 14 Thus,
the equal protection clause does not absolutely forbid classifications, such as the one which exists in the
instant case. If the classification is based on real and substantial differences; 15 is germane to the purpose of
the law; 16 applies to all members of the same
class; 17 and applies to current as well as future conditions, 18 the classification may not be impugned as
violating the Constitution's equal protection guarantee. A distinction based on real and reasonable
considerations related to a proper legislative purpose such as that which exists here is neither unreasonable,
capricious nor unfounded.
ACCORDINGLY, the petition is hereby DISMISSED.

95
SO ORDERED.

96

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS v LEONARDO A.

QUISUMBING
FIRST DIVISION
G.R. No. 128845

June 1, 2000

KAPUNAN, J.:
Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent School,
mostly Filipinos, cry discrimination. We agree. That the local-hires are paid more than their colleagues in other
schools is, of course, beside the point. The point is that employees should be given equal pay for work of equal
value. That is a principle long honored in this jurisdiction. That is a principle that rests on fundamental notions
of justice. That is the principle we uphold today.1wphi1.nt
Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree 732, is a
domestic educational institution established primarily for dependents of foreign diplomatic personnel and other
temporary residents.1 To enable the School to continue carrying out its educational program and improve its
standard of instruction, Section 2(c) of the same decree authorizes the School to employ its own teaching and
management personnel selected by it either locally or abroad, from Philippine or other nationalities, such
personnel being exempt from otherwise applicable laws and regulations attending their employment, except
laws that have been or will be enacted for the protection of employees.
Accordingly, the School hires both foreign and local teachers as members of its faculty, classifying the same
into two: (1) foreign-hires and (2) local-hires. The School employs four tests to determine whether a faculty
member should be classified as a foreign-hire or a local hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic allegiance?
d. Was the individual hired abroad specifically to work in the School and was the School responsible for
bringing that individual to the Philippines?2
Should the answer to any of these queries point to the Philippines, the faculty member is classified as a local
hire; otherwise, he or she is deemed a foreign-hire.
The School grants foreign-hires certain benefits not accorded local-hires.1avvphi1 These include housing,
transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary
rate twenty-five percent (25%) more than local-hires. The School justifies the difference on two "significant
economic disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor" and (b) limited
tenure. The School explains:
A foreign-hire would necessarily have to uproot himself from his home country, leave his family and friends,
and take the risk of deviating from a promising career path all for the purpose of pursuing his profession as
an educator, but this time in a foreign land. The new foreign hire is faced with economic realities: decent abode
for oneself and/or for one's family, effective means of transportation, allowance for the education of one's
children, adequate insurance against illness and death, and of course the primary benefit of a basic
salary/retirement compensation.
Because of a limited tenure, the foreign hire is confronted again with the same economic reality after his term:
that he will eventually and inevitably return to his home country where he will have to confront the uncertainty
of obtaining suitable employment after along period in a foreign land.

97

The compensation scheme is simply the School's adaptive measure to remain competitive on an international
level in terms of attracting competent professionals in the field of international education.3
When negotiations for a new collective bargaining agreement were held on June 1995, petitioner International
School Alliance of Educators, "a legitimate labor union and the collective bargaining representative of all
faculty members"4 of the School, contested the difference in salary rates between foreign and local-hires. This
issue, as well as the question of whether foreign-hires should be included in the appropriate bargaining unit,
eventually caused a deadlock between the parties.
On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation and Mediation
Board to bring the parties to a compromise prompted the Department of Labor and Employment (DOLE) to
assume jurisdiction over the dispute. On June 10, 1996, the DOLE Acting Secretary, Crescenciano B. Trajano,
issued an Order resolving the parity and representation issues in favor of the School. Then DOLE Secretary
Leonardo A. Quisumbing subsequently denied petitioner's motion for reconsideration in an Order dated March
19, 1997. Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and
that the grant of higher salaries to foreign-hires constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its faculty members, numbering 38 in all, with
nationalities other than Filipino, who have been hired locally and classified as local hires.5 The Acting
Secretary of Labor found that these non-Filipino local-hires received the same benefits as the Filipino localhires.
The compensation package given to local-hires has been shown to apply to all, regardless of race. Truth to tell,
there are foreigners who have been hired locally and who are paid equally as Filipino local hires.6
The Acting secretary upheld the point-of-hire classification for the distinction in salary rates:
The Principle "equal pay for equal work" does not find applications in the present case. The international
character of the School requires the hiring of foreign personnel to deal with different nationalities and different
cultures, among the student population.
We also take cognizance of the existence of a system of salaries and benefits accorded to foreign hired
personnel which system is universally recognized. We agree that certain amenities have to be provided to
these people in order to entice them to render their services in the Philippines and in the process remain
competitive in the international market.
Furthermore, we took note of the fact that foreign hires have limited contract of employment unlike the local
hires who enjoy security of tenure. To apply parity therefore, in wages and other benefits would also require
parity in other terms and conditions of employment which include the employment which include the
employment contract.
A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for salary and professional
compensation wherein the parties agree as follows:
All members of the bargaining unit shall be compensated only in accordance with Appendix C hereof provided
that the Superintendent of the School has the discretion to recruit and hire expatriate teachers from abroad,
under terms and conditions that are consistent with accepted international practice.
Appendix C of said CBA further provides:

98
The new salary schedule is deemed at equity with the Overseas Recruited Staff (OSRS) salary schedule. The
25% differential is reflective of the agreed value of system displacement and contracted status of the OSRS as
differentiated from the tenured status of Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the parties' recognition of the difference in the status of two types
of employees, hence, the difference in their salaries.
The Union cannot also invoke the equal protection clause to justify its claim of parity. It is an established
principle of constitutional law that the guarantee of equal protection of the laws is not violated by legislation or
private covenants based on reasonable classification. A classification is reasonable if it is based on substantial
distinctions and apply to all members of the same class. Verily, there is a substantial distinction between
foreign hires and local hires, the former enjoying only a limited tenure, having no amenities of their own in the
Philippines and have to be given a good compensation package in order to attract them to join the teaching
faculty of the School.7
We cannot agree.
That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect
the policy against these evils. The Constitution8 in the Article on Social Justice and Human Rights exhorts
Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people
to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil
Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with
justice, give everyone his due, and observe honesty and good faith.
International law, which springs from general principles of law,9 likewise proscribes discrimination. General
principles of law include principles of equity, 10 i.e., the general principles of fairness and justice, based on the
test of what is reasonable. 11 The Universal Declaration of Human Rights, 12 the International Covenant on
Economic, Social, and Cultural Rights, 13 the International Convention on the Elimination of All Forms of
Racial Discrimination, 14 the Convention against Discrimination in Education, 15 the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation 16 all embody the general principle
against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has
incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality
and discrimination by the employer are all the more reprehensible.
The Constitution 17 specifically provides that labor is entitled to "humane conditions of work." These conditions
are not restricted to the physical workplace the factory, the office or the field but include as well the
manner by which employers treat their employees.
The Constitution 18 also directs the State to promote "equality of employment opportunities for all." Similarly,
the Labor Code 19 provides that the State shall "ensure equal work opportunities regardless of sex, race or
creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial
obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment. 20
Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example,
prohibits and penalizes 21 the payment of lesser compensation to a female employee as against a male
employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to
discriminate in regard to wages in order to encourage or discourage membership in any labor organization.
Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof,
provides:

99
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and
favourable conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular
women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal
work;
xxx

xxx

xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal
pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility,
under similar conditions, should be paid similar salaries. 22 This rule applies to the School, its "international
character" notwithstanding.
The School contends that petitioner has not adduced evidence that local-hires perform work equal to that of
foreign-hires. 23 The Court finds this argument a little cavalier. If an employer accords employees the same
position and rank, the presumption is that these employees perform equal work. This presumption is borne by
logic and human experience. If the employer pays one employee less than the rest, it is not for that employee
to explain why he receives less or why the others receive more. That would be adding insult to injury. The
employer has discriminated against that employee; it is for the employer to explain why the employee is treated
unfairly.
The employer in this case has failed to discharge this burden. There is no evidence here that foreign-hires
perform 25% more efficiently or effectively than the local-hires. Both groups have similar functions and
responsibilities, which they perform under similar working conditions.
The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the distinction in
salary rates without violating the principle of equal work for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services performed."
Similarly, the Philippine Legal Encyclopedia states that "salary" is the "[c]onsideration paid at regular intervals
for the rendering of services." In Songco v. National Labor Relations Commission, 24 we said that:
"salary" means a recompense or consideration made to a person for his pains or industry in another man's
business. Whether it be derived from "salarium," or more fancifully from "sal," the pay of the Roman soldier, it
carries with it the fundamental idea of compensation for services rendered. (Emphasis supplied.)
While we recognize the need of the School to attract foreign-hires, salaries should not be used as an
enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-hires and they
ought to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreignhires' limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor
and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them
which are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave
travel allowances.
The Constitution enjoins the State to "protect the rights of workers and promote their welfare," 25 "to afford
labor full protection." 26 The State, therefore, has the right and duty to regulate the relations between labor and
capital. 27 These relations are not merely contractual but are so impressed with public interest that labor
contracts, collective bargaining agreements included, must yield to the common good. 28 Should such
contracts contain stipulations that are contrary to public policy, courts will not hesitate to strike down these
stipulations.

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In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in
the salary rates of foreign-hires and local hires to be an invalid classification. There is no reasonable distinction
between the services rendered by foreign-hires and local-hires. The practice of the School of according higher
salaries to foreign-hires contravenes public policy and, certainly, does not deserve the sympathy of this
Court.1avvphi1
We agree, however, that foreign-hires do not belong to the same bargaining unit as the local-hires.
A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of the entire
body of employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal
rights and duties of the parties under the collective bargaining provisions of the law." 29 The factors in
determining the appropriate collective bargaining unit are (1) the will of the employees (Globe Doctrine); (2)
affinity and unity of the employees' interest, such as substantial similarity of work and duties, or similarity of
compensation and working conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining
history; and (4) similarity of employment status. 30 The basic test of an asserted bargaining unit's acceptability
is whether or not it is fundamentally the combination which will best assure to all employees the exercise of
their collective bargaining rights. 31
It does not appear that foreign-hires have indicated their intention to be grouped together with local-hires for
purposes of collective bargaining. The collective bargaining history in the School also shows that these groups
were always treated separately. Foreign-hires have limited tenure; local-hires enjoy security of tenure.
Although foreign-hires perform similar functions under the same working conditions as the local-hires, foreignhires are accorded certain benefits not granted to local-hires. These benefits, such as housing, transportation,
shipping costs, taxes, and home leave travel allowance, are reasonably related to their status as foreign-hires,
and justify the exclusion of the former from the latter. To include foreign-hires in a bargaining unit with localhires would not assure either group the exercise of their respective collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART. The Orders
of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997, are hereby REVERSED
and SET ASIDE insofar as they uphold the practice of respondent School of according foreign-hires higher
salaries than local-hires.
SO ORDERED.

101

PEOPLE vs. ROMEO G. JALOSJOS

EN BANC
[G.R. Nos. 132875-76. February 3, 2000]
OF THE PHILIPPINES, plaintiff-appellee, , accused-appellant.
RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo G. Jalosjos is a full-fledged member of Congress who is now confined at the
national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six
counts[1] is pending appeal. The accused-appellant filed this motion asking that he be allowed to fully
discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings
despite his having been convicted in the first instance of a non-bailable offense.
The issue raised is one of first impression.
Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated
persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in
the judicial interpretation of legislative privilege in the context of penal law.
The accused-appellants "Motion To Be Allowed To Discharge Mandate As Member of House of
Representatives" was filed on the grounds that
1. Accused-appellants reelection being an expression of popular will cannot be rendered inutile by any ruling,
giving priority to any right or interest not even the police power of the State.
2. To deprive the electorate of their elected representative amounts to taxation without representation.
3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the
renewed mandate entrusted to him by the people.
4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.
5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.
6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of
government to respect its mandate.
7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to discharge
his mandate.
8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.
The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate
of the First District of Zamboanga del Norte chose him as their representative in Congress. Having been reelected by his constituents, he has the duty to perform the functions of a Congressman. He calls this a
covenant with his constituents made possible by the intervention of the State. He adds that it cannot be
defeated by insuperable procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people
expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its

102
importance, the privileges and rights arising from having been elected may be enlarged or restricted by law.
Our first task is to ascertain the applicable law.
We start with the incontestable proposition that all top officials of Government-executive, legislative, and
judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that election
or appointment to high government office, by itself, frees the official from the common restraints of general law.
Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the
greater is the requirement of obedience rather than exemption.
The immunity from arrest or detention of Senators and members of the House of Representatives, the latter
customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the
provision shows that the privilege has always been granted in a restrictive sense. The provision granting an
exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be
extended by intendment, implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the Legislative Department:
Sec. 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony,
and breach of the peace be privileged from arrest during their attendance at the sessions of Congress, and in
going to and returning from the same; xxx.
Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not
claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still
to be tried or whose convictions were pending appeal.
The 1973 Constitution broadened the privilege of immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six
years imprisonment, be privileged from arrest during his attendance at its sessions and in going to and
returning from the same.
For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The
restrictive interpretation of immunity and the intent to confine it within carefully defined parameters is illustrated
by the concluding portion of the provision, to wit:
xxx but the Batasang Pambansa shall surrender the member involved to the custody of the law within twenty
four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon
its failure to do so.
The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the
subject Congressman to the custody of the law. The requirement that he should be attending sessions or
committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in
session.
The accused-appellant argues that a member of Congress function to attend sessions is underscored by
Section 16 (2), Article VI of the Constitution which states that
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from
day to day and may compel the attendance of absent Members in such manner, and under such penalties, as
such House may provide.
However, the accused-appellant has not given any reason why he should be exempted from the operation of
Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend

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sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a
crime punishable by imprisonment of more than six months is not merely authorized by law, it has
constitutional foundations.
Accused-appellants reliance on the ruling in Aguinaldo v. Santos[2], which states, inter alia, that
The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When a people have elected a
man to office, it must be assumed that they did this with the knowledge of his life and character, and that they
disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of
such fault or misconduct, to practically overrule the will of the people.
will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo
case involves the administrative removal of a public officer for acts done prior to his present term of office. It
does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that
preventive suspension is not removal, confinement pending appeal is not removal. He remains a congressman
unless expelled by Congress or, otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense.
Society must protect itself. It also serves as an example and warning to others.
A person charged with crime is taken into custody for purposes of the administration of justice. As stated in
United States v. Gustilo,[3] it is the injury to the public which State action in criminal law seeks to redress. It is
not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail
and thus subjected to incarceration if there is risk of his absconding.[4]
The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted
by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties
outside his regular place of confinement.
It will be recalled that when a warrant for accused-appellants arrest was issued, he fled and evaded capture
despite a call from his colleagues in the House of Representatives for him to attend the sessions and to
surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which
accused-appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate,
aside from its being contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the
States penal system.
Accused-appellant argues that on several occasions, the Regional Trial Court of Makati granted several
motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:
a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the
issue of whether to expel/suspend him from the House of Representatives;
b) to undergo dental examination and treatment at the clinic of his dentist in Makati City;
c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City;
d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by
chartered plane and private vehicle.
He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when
he was likewise allowed/permitted to leave the prison premises, to wit:

104
a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany
seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one
guard and allowed to use his own vehicle and driver in going to and from the project area and his place of
confinement.
b) to continue with his dental treatment at the clinic of his dentist in Makati City.
c) to be confined at the Makati Medical Center in Makati City for his heart condition.
There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or
compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities
or upon court orders.
What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend
congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a
free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates
accused-appellants status to that of a special class, it also would be a mockery of the purposes of the
correction system. Of particular relevance in this regard are the following observations of the Court in Martinez
v. Morfe:[5]
The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be
sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the
Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of their conscience. Necessarily the utmost
latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would
amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a
criminal offense, they would be considered immune during their attendance in Congress and in going to and
returning from the same. There is likely to be no dissent from the proposition that a legislator or a delegate can
perform his functions efficiently and well, without the need for any transgression of the criminal law. Should
such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a
strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed
that the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it
suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of
the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption
of course is that the judiciary would remain independent. It is trite to say that in each and every manifestation
of judicial endeavor, such a virtue is of the essence.
The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices
to be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges
a co-equal branch of government to respect his mandate. He also claims that the concept of temporary
detention does not necessarily curtail his duty to discharge his mandate and that he has always complied with
the conditions/restrictions when he is allowed to leave jail.
We remain unpersuaded.
No less than accused-appellant himself admits that like any other member of the House of Representatives
"[h]e is provided with a congressional office situated at Room N-214, North Wing Building, House of
Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by
Congress. Through [an] inter-department coordination, he is also provided with an office at the Administration
Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents." Accused-appellant further
admits that while under detention, he has filed several bills and resolutions. It also appears that he has been
receiving his salaries and other monetary benefits. Succinctly stated, accused-appellant has been discharging
his mandate as a member of the House of Representative consistent with the restraints upon one who is

105
presently under detention. Being a detainee, accused-appellant should not even have been allowed by the
prison authorities at the National Pentientiary to perform these acts.
When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of
the limitations on his freedom of action. They did so with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if
voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at
any time, he may no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
The Constitution guarantees: "x x x nor shall any person be denied the equal protection of laws."[6] This simply
means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities
imposed.[7] The organs of government may not show any undue favoritism or hostility to any person. Neither
partiality nor prejudice shall be displayed.
Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same
class as all persons validly confined under law?
The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant
is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to function well in the physical absence of one or a
few of its members. Depending on the exigency of Government that has to be addressed, the President or the
Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends
on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of
nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective
governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the
call of a particular duty lifted a prisoner into a different classification from those others who are validly
restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in
favor of or against groups or types of individuals.[8]
The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise
of government authority to regulate even if thereby certain groups may plausibly assert that their interests are
disregarded.[9]
We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to all those belonging to the same class.[10]
Imprisonment is the restraint of a mans personal liberty; coercion exercised upon a person to prevent the free
exercise of his power of locomotion.[11]
More explicitly, "imprisonment" in its general sense, is the restraint of ones liberty. As a punishment, it is
restraint by judgment of a court or lawful tribunal, and is personal to the accused.[12] The term refers to the
restraint on the personal liberty of another; any prevention of his movements from place to place, or of his free
action according to his own pleasure and will.[13] Imprisonment is the detention of another against his will
depriving him of his power of locomotion[14] and it "[is] something more than mere loss of freedom. It includes
the notion of restraint within limits defined by wall or any exterior barrier."[15]

106
It can be seen from the foregoing that incarceration, by its nature, changes an individuals status in society.[16]
Prison officials have the difficult and often thankless job of preserving the security in a potentially explosive
setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into the social
mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.[17]
Premises considered, we are constrained to rule against the accused-appellants claim that re-election to
public office gives priority to any other right or interest, including the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.

107

PEOPLE v DE GRACIA
SECOND DIVISION
G. R. Nos. 102009-10

July 6, 1994

OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:
The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by
ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People
(RAM-SFP) against the Government. At that time, various government establishments and military camps in
Metro Manila were being bombarded by the rightist group with their "tora-tora" planes. At around midnight of
November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the
Scout Rangers took over the Headquarters of the Philippine Army, the Army Operations Center, and Channel
4, the government television station. Also, some elements of the Philippine Army coming from Fort Magsaysay
occupied the Greenhills Shopping Center in San Juan, Metro Manila. 1
Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of
ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal
Cases Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of
Quezon City, Branch 103.
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true
names and identities have not as yet been ascertained, were charged with the crime of illegal possession of
ammunition and explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential
Decree No. 1866, allegedly committed as follows:
That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA, PHILIPPINES, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, and without authority of law, did then and there willfully, unlawfully,
feloniously and knowingly have in their possession, custody and control, the following to wit:
Five (5) bundles of C-4 or dynamites
Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs
without first securing the necessary license and/or permit to possess the same from the proper authorities, and
armed with said dynamites, ammunition and explosives and pursuant to their conspiracy heretofore agreed
upon by them and prompted by common designs, come to an agreement and decision to commit the crime of
rebellion, by then and there participating therein and publicly taking arms against the duly constituted
authorities, for the purpose of overthrowing the Government of the Republic of the Philippines, disrupting and
jeopardizing its activities and removing from its allegiance the territory of the Philippines or parts thereof. 2

108
In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several
John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City
upon the person of Crispin Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of
attempted homicide.
During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not
authorized to possess any firearms, ammunition and/or explosive. 3 The parties likewise stipulated that there
was a rebellion during the period from November 30 up to December 9, 1989. 4
The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division,
National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the
Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team
composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt.
Ramos. The surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was
conducted pursuant to an intelligence report received by the division that said establishment was being
occupied by elements of the RAM-SFP as a communication command post.
Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the
Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his
surveillance on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment
near Camp Aguinaldo. After a while, a group of five men disengaged themselves from the crowd and walked
towards the car of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the
approaching group and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed
by the group, then only six meters away, the latter pointed to them, drew their guns and fired at the team,
which attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was
able to retaliate because they sought cover inside the car and they were afraid that civilians or bystanders
might be caught in the cross-fire.
As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio
Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th
Infantry Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and
confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and
"molotov" bombs inside one of the rooms belonging to a certain Col. Matillano which is located at the right
portion of the building. Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia
inside the office of Col. Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the
only person then present inside the room. A uniform with the nametag of Col. Matillano was also found. As a
result of the raid, the team arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were
janitors at the Eurocar building. They were then made to sign an inventory, written in Tagalog, of the
explosives and ammunition confiscated by the raiding team. No search warrant was secured by the raiding
team because, according to them, at that time there was so much disorder considering that the nearby Camp
Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the vicinity of the
Eurocar office, aside from the fact that the courts were consequently closed. The group was able to confirm
later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant is supposedly a "boy" therein.
Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989,
he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales
Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales
Office on December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building.
According to him, he was tasked to guard the office of Col. Matillano which is located at the right side of the
building. He denies, however, that he was inside the room of Col. Matillano when the raiding team barged in
and that he had explosives in his possession. He testified that when the military raided the office, he was
ordered to get out of his house and made to lie on the ground face down, together with "Obet" and "Dong" who

109
were janitors of the building. He avers that he does not know anything about the explosives and insists that
when they were asked to stand up, the explosives were already there.
Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated
National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the
1987 coup d' etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano
then told him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his
arrest at the Eurocar office, appellant worked for Matillano.
De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni
Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin
natin."
On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of attempted
homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in
furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a
recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders
and pursuant to the spirit contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that
Rolando de Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior.
That judgment of conviction is now challenged before us in this appeal.
Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that
he did not have either physical or constructive possession thereof considering that he had no intent to possess
the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were
found; he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in
behalf of Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to
possess, which is necessary before one can be convicted under Presidential Decree No. 1866, was not
present in the case at bar.
Presidential Decree No. 1866 provides as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or
Instruments Used or intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of
reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearms, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion, the penalty of death shall be imposed.
Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives,
and which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable
resources of the country. The series of coup d' etats unleashed in the country during the first few years of the
transitional government under then President Corazon P. Aquino attest to the ever-growing importance of laws
such as Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or
acts which tend to disturb public peace and order.

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I.
The first issue to be resolved is whether or not intent to possess is an essential element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally
possess firearms and ammunition.
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What
the law requires is merely possession which includes not only actual physical possession but also constructive
possession or the subjection of the thing to one's control and management. 6 This has to be so if the manifest
intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes
exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the
object of this law the proprietary concept of the possession can have no bearing whatsoever. 7
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess to constitute a violation of the law? This query
assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a
special law, 8 in which case good faith and absence of criminal intent are not valid defenses. 9
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit
the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended
to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime
itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate
the act) it is enough that the prohibited act is done freely and consciously. 10
In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must
still be shown that there was animus possidendi or an intent to possess on the part of the accused. 11 Such
intent to possess is, however, without regard to any other criminal or felonious intent which the accused may
have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit
an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that
the accused had no authority or license to possess a firearm, and that he intended to possess the same, even
if such possession was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be
considered a violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential
Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.
Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of
having intentionally possessed several firearms, explosives and ammunition without the requisite license or
authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to
enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in
the room and holding the several explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant
denied any knowledge about the explosives. Then, he alternatively contended that his act of guarding the
explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof because there was
no intent on his part to possess the same, since he was merely employed as an errand boy of Col. Matillano.
His pretension of impersonal or indifferent material possession does not and cannot inspire credence.
Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in
the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a
former soldier, having served with the Philippine Constabulary prior to his separation from the service for going
on absence without leave

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(AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable
about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military
from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous
uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his
possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives
were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in
a gun store, an arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if
he finds articles of this nature in a place intended to carry out the business of selling cars and which has
nothing to do at all, directly or indirectly, with the trade of firearms and ammunition.
On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually
intended to possess the articles confiscated from his person.
II.
The next question that may be asked is whether or not there was a valid search and seizure in this
case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence
thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team,
considering the gravity of the offense for which herein appellant stands to be convicted and the penalty sought
to be imposed.
It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search
warrant at that time. 15 The raid was actually precipitated by intelligence reports that said office was being
used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises
wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the
military operatives raided the place, the occupants thereof refused to open the door despite requests for them
to do so, thereby compelling the former to break into the office. 17 The Eurocar Sales Office is obviously not a
gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and
ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity
of high-powered firearms and explosives could not be justifiably or even colorably explained. In addition, there
was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of
the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts in the
surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the
exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into
account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed.
There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the
situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the
courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court
was closed. 19 Under such urgency and exigency of the moment, a search warrant could lawfully be
dispensed with.
The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs.
Malmstedt 20 and bears reiteration:
While it is true that the NARCOM officers were not armed with a search warrant when the search was made
over the personal effects of accused, however, under the circumstances of the case, there was sufficient
probable cause for said officers to believe that accused was then and there committing a crime.
Probable cause has been defined as such facts and circumstances which would lead a reasonable, discreet
and prudent man to believe that an offense has been committed, and that the objects sought in connection with
the offense are in the place sought to be searched. The required probable cause that will justify a warrantless
search and seizure is not determined by any fixed formula but is resolved according to the facts of each case.

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Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of
existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously, and attempted to flee.
Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a
Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information
was received by the Commanding Officer of NARCOM the very same morning that accused came down by
bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of herein accused, that a
Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to
obtain a search warrant. In the Tangliben case, the police authorities conducted a surveillance at the Victory
Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against persons engaged in the traffic
of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting
suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was
held that when faced with on-the-spot information, the police officers had to act quickly and there was no time
to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where
accused was riding) and the passengers therein, and no extensive search was initially made. It was only when
one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused
was required to present his passport. The failure of accused to present his identification papers, when ordered
to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is
it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his
identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his
possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led
the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the warrantless search that was
made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the
accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) teddy bears with hashish stuffed inside them, were
prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the
information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his
possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search
even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in
law enforcement, to the detriment of society.
In addition, we find the principle enunciated in Umil, et al., vs. Ramos,
et al., 21 applicable, by analogy, to the present case:
The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing nonviolent 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 really 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 (are) of the essence of waging a rebellion or insurrection, most assuredly

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so in case of invasion, merely seizing their persons and detaining them while any of these contingencies
continues cannot be less justified.
III.
As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and
until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession
of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in
furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to
paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period."
The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano
(whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is
guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this
finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by the court below as a basis
in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear
that appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles
134 and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with
discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or
other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a
rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as part of a rebellion. 22
As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the
Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is
penalized under two different statutes with different penalties, even if considered highly advantageous to the
prosecution and onerous to the accused. 23 It follows that, subject to the presence of the requisite elements in
each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134
and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the
first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code,
24 with variant elements.
It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code
in this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for
executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good
behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision
thereon should be insulated against any tenuous importunity.
Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De
Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In
the words of the court a quo:
2.
the nature and quantity of the items 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo and 100
bottles of molotov bombs indicate that the reports received by the military that the Eurocar Sales Building was
being used by the rebels was not without basis. Those items are clearly not for one's personal defense. They
are for offensive operations. De Gracia admitted that per instruction of Col. Matillano he went down to Eurocar
Sales Building from Antipolo to stay guard there.
His manifestation of innocence of those items and what he has been guarding in that office is not credible for:
(a) he was a former military personnel; (b) at the birthday party of Col. Matillano on November 30, 1989 many

114
soldiers and ex-soldiers were present which self-evidently discloses that De Gracia, in the company of his
boss, was still very much at home and constantly in touch with soldiers and the armed rebellion of November
30, 1989 to December 8 or 9, 1989 was a military coup d' etat; (c) it appears that he is the only person tasked
with caretaking (sic) there in the Matillano office, which shows that he is a highly trusted right-hand man of Col.
Matillano; and (d) as heretofore discussed, De Gracia was earlier seen with some men who fired upon a car of
the AFP intelligence agents. 25
Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and
ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was
committed under the governance of that law, the imposition of the death penalty was proscribed by the
Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty of reclusion
perpetua which was correctly meted out by the trial court, albeit with an erroneous recommendation in
connection therewith.
WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein
for executive clemency and the supposed basis thereof are hereby DELETED, with costs against accusedappellant.
SO ORDERED.

115

SABIO V GORDON
EN BAN
G.R. No. 174340

October 17, 2006

IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS OF CAMILO L.
SABIO, petitioner,
J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,
vs.
HONORABLE SENATOR RICHARD GORDON, in his capacity as Chairman, and the HONORABLE
MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES and
THE COMMITTEE ON PUBLIC SERVICES of the Senate, HONORABLE SENATOR JUAN PONCE-ENRILE,
in his official capacity as Member, HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANTAT-ARMS, and the SENATE OF THE PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174318

October 17, 2006

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and CAMILO L. SABIO, Chairman,

NARCISO S. NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and NICASIO A. CONTI, Commissioners,
MANUEL ANDAL and JULIO JALANDONI, PCGG nominees to Philcomsat Holdings Corporation, petitioners,
vs.
RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF THE COMMITTEE ON
GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF THE COMMITTEE ON
PUBLIC SERVICES, SENATOR JUAN PONCE-ENRILE, in his capacity as member of both said Committees,
MANUEL VILLAR, Senate President, THE SENATE SERGEANT-AT-ARMS, and SENATE OF THE
PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174177

October 17, 2006

PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN
JOSE, DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA ALOBBA, and JOHNNY TAN, petitioners,
vs.
SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and PUBLIC ENTERPRISES, its MEMBERS
and CHAIRMAN, the HONORABLE SENATOR RICHARD GORDON and SENATE COMMITTEE ON PUBLIC
SERVICES, its Members and Chairman, the HONORABLE SENATOR JOKER P. ARROYO, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:
Two decades ago, on February 28, 1986, former President Corazon C. Aquino installed her regime by issuing
Executive Order (E.O.) No. 1,1 creating the Presidential Commission on Good Government (PCGG). She
entrusted upon this Commission the herculean task of recovering the ill-gotten wealth accumulated by the
deposed President Ferdinand E. Marcos, his family, relatives, subordinates and close associates.2 Section 4
(b) of E.O. No. 1 provides that: "No member or staff of the Commission shall be required to testify or produce
evidence in any judicial, legislative or administrative proceeding concerning matters within its official
cognizance." Apparently, the purpose is to ensure PCGG's unhampered performance of its task.3

116
Today, the constitutionality of Section 4(b) is being questioned on the ground that it tramples upon the
Senate's power to conduct legislative inquiry under Article VI, Section 21 of the 1987 Constitution, which reads:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid
of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
The facts are undisputed.
On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455
(Senate Res. No. 455),4 "directing an inquiry in aid of legislation on the anomalous losses incurred by the
Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite
Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties
in their operations by their respective Board of Directors."
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the representation and entertainment expense of the PHC skyrocketed
to P4.3 million, as compared to the previous year's mere P106 thousand;
WHEREAS, some board members established wholly owned PHC subsidiary called Telecommunications
Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months, over P73 million had been allegedly
advanced to TCI without any accountability report given to PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive committee of
Philcomsat has precipitately released P265 million and granted P125 million loan to a relative of an executive
committee member; to date there have been no payments given, subjecting the company to an estimated
interest income loss of P11.25 million in 2004;
WHEREAS, there is an urgent need to protect the interest of the Republic of the Philippines in the PHC,
PHILCOMSAT, and POTC from any anomalous transaction, and to conserve or salvage any remaining value
of the government's equity position in these corporations from any abuses of power done by their respective
board of directors;
WHEREFORE, be it resolved that the proper Senate Committee shall conduct an inquiry in aid of legislation,
on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC),
Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations
(PHC) due to the alleged improprieties in the operations by their respective board of directors.
Adopted.
(Sgd) MIRIAM DEFENSOR SANTIAGO
On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and referred to the
Committee on Accountability of Public Officers and Investigations and Committee on Public Services.
However, on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was transferred to the
Committee on Government Corporations and Public Enterprises.5
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote
Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource
persons in the public meeting jointly conducted by the Committee on Government Corporations and Public
Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate
Res. No. 455.6

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On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.7 At the same time, he
invoked Section 4(b) of E.O. No. 1 earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,8 approved by Senate President
Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso
Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what
they know relative to the matters specified in Senate Res. No. 455. Similar subpoenae were issued against the
directors and officers of Philcomsat Holdings Corporation, namely: Benito V. Araneta, Philip J. Brodett, Enrique
L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin
P. Angcao, Alma Kristina Alloba and Johnny Tan.9
Again, Chairman Sabio refused to appear. In his letter to Senator Gordon dated August 18, 2006, he reiterated
his earlier position, invoking Section 4(b) of E.O. No. 1. On the other hand, the directors and officers of
Philcomsat Holdings Corporation relied on the position paper they previously filed, which raised issues on the
propriety of legislative inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator Gordon, sent another
notice10 to Chairman Sabio requiring him to appear and testify on the same subject matter set on September
6, 2006. The notice was issued "under the same authority of the Subpoena Ad Testificandum previously
served upon (him) last 16 August 2006."
Once more, Chairman Sabio did not comply with the notice. He sent a letter11 dated September 4, 2006 to
Senator Gordon reiterating his reason for declining to appear in the public hearing.
This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring Chairman Sabio and
Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be cited in contempt of the
Senate. On September 11, 2006, they submitted to the Senate their Compliance and Explanation,12 which
partly reads:
Doubtless, there are laudable intentions of the subject inquiry in aid of legislation. But the rule of law requires
that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily,
laudable purposes must be carried out by legal methods. (Brillantes, Jr., et al. v. Commission on Elections, En
Banc [G.R. No. 163193, June 15, 2004])
On this score, Section 4(b) of E.O. No. 1 should not be ignored as it explicitly provides:
No member or staff of the Commission shall be required to testify or produce evidence in any judicial legislative
or administrative proceeding concerning matters within its official cognizance.
With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of legislative inquiry, and a
recognition by the State of the need to provide protection to the PCGG in order to ensure the unhampered
performance of its duties under its charter. E.O. No. 1 is a law, Section 4(b) of which had not been amended,
repealed or revised in any way.
To say the least, it would require both Houses of Congress and Presidential fiat to amend or repeal the
provision in controversy. Until then, it stands to be respected as part of the legal system in this jurisdiction. (As
held in People v. Veneracion, G.R. Nos. 119987-88, October 12, 1995: Obedience to the rule of law forms the
bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary
powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought
to 'protect and enforce it without fear or favor,' 4 [Act of Athens (1955)] resist encroachments by governments,
political parties, or even the interference of their own personal beliefs.)

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xxxxxx
Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006 pointed out that the anomalous
transactions referred to in the P.S. Resolution No. 455 are subject of pending cases before the regular courts,
the Sandiganbayan and the Supreme Court (Pending cases include: a. Samuel Divina v. Manuel Nieto, Jr., et
al., CA-G.R. No. 89102; b. Philippine Communications Satellite Corporation v. Manuel Nieto, et al.; c.
Philippine Communications Satellite Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC, Branch 61,
Makati City; d. Philippine Communications Satellite Corporation v. PHILCOMSAT Holdings Corporation, et al.,
Civil Case No. 04-1049) for which reason they may not be able to testify thereon under the principle of sub
judice. The laudable objectives of the PCGG's functions, recognized in several cases decided by the Supreme
Court, of the PCGG will be put to naught if its recovery efforts will be unduly impeded by a legislative
investigation of cases that are already pending before the Sandiganbayan and trial courts.
In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the Honorable Supreme Court
held:
"[T]he issues sought to be investigated by the respondent Committee is one over which jurisdiction had been
acquired by the Sandiganbayan. In short, the issue has been pre-empted by that court. To allow the
respondent Committee to conduct its own investigation of an issue already before the Sandigabayan would not
only pose the possibility of conflicting judgments between a legislative committee and a judicial tribunal, but if
the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence
being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted.
xxxxxx
IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission decided not to attend the
Senate inquiry to testify and produce evidence thereat.
Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and
Public Enterprises and the Committee on Public Services issued an Order13 directing Major General Jose
Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for
contempt of the Senate. The Order bears the approval of Senate President Villar and the majority of the
Committees' members.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office
at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was
detained.
Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the Senate Committee on
Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators
Richard Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340.
Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the PCGG's nominees to Philcomsat
Holdings Corporation, Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari and prohibition
against the same respondents, and also against Senate President Manuel Villar, Senator Juan Ponce Enrile,
the Sergeant-at-Arms, and the entire Senate. The case was docketed as G.R. No. 174318.
Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely: Philip G. Brodett, Luis K.
Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny Tan filed
a petition for certiorari and prohibition against the Senate Committees on Government Corporations and Public
Enterprises and Public Services, their Chairmen, Senators Gordon and Arroyo, and Members. The case was
docketed as G.R. No. 174177.

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In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and prohibition) Chairman Sabio,
Commissioners Abcede, Conti, Nario, and Javier; and the PCGG's nominees Andal and Jalandoni alleged:
first, respondent Senate Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason;
second, the inquiries conducted by respondent Senate Committees are not in aid of legislation; third, the
inquiries were conducted in the absence of duly published Senate Rules of Procedure Governing Inquiries in
Aid of Legislation; and fourth, respondent Senate Committees are not vested with the power of contempt.
In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers alleged: first,
respondent Senate Committees have no jurisdiction over the subject matter stated in Senate Res. No. 455;
second, the same inquiry is not in accordance with the Senate's Rules of Procedure Governing Inquiries in Aid
of Legislation; third, the subpoenae against the individual petitioners are void for having been issued without
authority; fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455 constitutes undue
encroachment by respondents into justiciable controversies over which several courts and tribunals have
already acquired jurisdiction; and fifth, the subpoenae violated petitioners' rights to privacy and against selfincrimination.
In their Consolidated Comment, the above-named respondents countered: first, the issues raised in the
petitions involve political questions over which this Court has no jurisdiction; second, Section 4(b) has been
repealed by the Constitution; third, respondent Senate Committees are vested with contempt power; fourth,
Senate's Rules of Procedure Governing Inquiries in Aid of Legislation have been duly published; fifth,
respondents have not violated any civil right of the individual petitioners, such as their (a) right to privacy; and
(b) right against self-incrimination; and sixth, the inquiry does not constitute undue encroachment into
justiciable controversies.
During the oral arguments held on September 21, 2006, the parties were directed to submit simultaneously
their respective memoranda within a non-extendible period of fifteen (15) days from date. In the meantime, per
agreement of the parties, petitioner Chairman Sabio was allowed to go home. Thus, his petition for habeas
corpus has become moot. The parties also agreed that the service of the arrest warrants issued against all
petitioners and the proceedings before the respondent Senate Committees are suspended during the
pendency of the instant cases.14
Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of E.O. No. 1
is repealed by the 1987 Constitution. On this lone issue hinges the merit of the contention of Chairman Sabio
and his Commissioners that their refusal to appear before respondent Senate Committees is justified. With the
resolution of this issue, all the other issues raised by the parties have become inconsequential.
Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987 Constitution granting
respondent Senate Committees the power of legislative inquiry. It reads:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid
of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by
exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding,
thus:
No member or staff of the Commission shall be required to testify or produce evidence in any judicial,
legislative or administrative proceeding concerning matters within its official cognizance.
To determine whether there exists a clear and unequivocal repugnancy between the two quoted provisions that
warrants a declaration that Section 4(b) has been repealed by the 1987 Constitution, a brief consideration of
the Congress' power of inquiry is imperative.

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The Congress' power of inquiry has been recognized in foreign jurisdictions long before it reached our shores
through McGrain v. Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier days, American courts
considered the power of inquiry as inherent in the power to legislate. The 1864 case of Briggs v. MacKellar17
explains the breath and basis of the power, thus:
Where no constitutional limitation or restriction exists, it is competent for either of the two bodies composing
the legislature to do, in their separate capacity, whatever may be essential to enable them to legislate.It is
well-established principle of this parliamentary law, that either house may institute any investigation having
reference to its own organization, the conduct or qualification of its members, its proceedings, rights, or
privileges or any matter affecting the public interest upon which it may be important that it should have exact
information, and in respect to which it would be competent for it to legislate. The right to pass laws, necessarily
implies the right to obtain information upon any matter which may become the subject of a law. It is essential to
the full and intelligent exercise of the legislative function.In American legislatures the investigation of public
matters before committees, preliminary to legislation, or with the view of advising the house appointing the
committee is, as a parliamentary usage, well established as it is in England, and the right of either house to
compel witnesses to appear and testify before its committee, and to punish for disobedience has been
frequently enforced.The right of inquiry, I think, extends to other matters, in respect to which it may be
necessary, or may be deemed advisable to apply for legislative aid.
Remarkably, in Arnault, this Court adhered to a similar theory. Citing McGrain, it recognized that the power of
inquiry is "an essential and appropriate auxiliary to the legislative function," thus:
Although there is no provision in the "Constitution expressly investing either House of Congress with power to
make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and
effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power
of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions
which the legislation is intended to affect or change; and where the legislation body does not itself possess the
requisite information which is not infrequently true recourse must be had to others who possess it."
Dispelling any doubt as to the Philippine Congress' power of inquiry, provisions on such power made their
maiden appearance in Article VIII, Section 12 of the 1973 Constitution.18 Then came the 1987 Constitution
incorporating the present Article VI, Section 12. What was therefore implicit under the 1935 Constitution, as
influenced by American jurisprudence, became explicit under the 1973 and 1987 Constitutions.19
Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of "any of
its committee." This is significant because it constitutes a direct conferral of investigatory power upon the
committees and it means that the mechanisms which the Houses can take in order to effectively perform its
investigative function are also available to the committees.20
It can be said that the Congress' power of inquiry has gained more solid existence and expansive construal.
The Court's high regard to such power is rendered more evident in Senate v. Ermita,21 where it categorically
ruled that "the power of inquiry is broad enough to cover officials of the executive branch." Verily, the Court
reinforced the doctrine in Arnault that "the operation of government, being a legitimate subject for legislation, is
a proper subject for investigation" and that "the power of inquiry is co-extensive with the power to legislate."
Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI, Section
21. Section 4(b) exempts the PCGG members and staff from the Congress' power of inquiry. This cannot be
countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress' power of
inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as
proposed or possibly needed statutes.22 It even extends "to government agencies created by Congress and
officers whose positions are within the power of Congress to regulate or even abolish."23 PCGG belongs to
this class.

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Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of
any constitutional basis.
Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: "Public
office is a public trust. Public officers and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead
modest lives."
The provision presupposes that since an incumbent of a public office is invested with certain powers and
charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for
the people and are to be exercised in behalf of the government or of all citizens who may need the intervention
of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other
words, public officers are but the servants of the people, and not their rulers.24
Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability. It
places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies.
Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and nonaccountability. In Presidential Commission on Good Government v. Pea,25 Justice Florentino P. Feliciano
characterized as "obiter" the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of
E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined:
The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear
that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of
Section 4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal import as immunizing the
PCGG or any member thereof from civil liability "for anything done or omitted in the discharge of the task
contemplated by this Order," the constitutionality of Section 4 (a) would, in my submission, be open to most
serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of
members and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and
a privileged status not claimed by any other official of the Republic under the 1987 Constitution. x x x.
xxxxxx
It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not be
required to testify before the Sandiganbayan or that such members were exempted from complying with orders
of this Court.
Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section 4(b) has been frowned upon by this
Court even before the filing of the present petitions.
Corollarily, Section 4(b) also runs counter to the following constitutional provisions ensuring the people's
access to information:
Article II, Section 28
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
Article III, Section 7
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

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These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations
of the government, as well as provide the people sufficient information to enable them to exercise effectively
their constitutional rights. Armed with the right information, citizens can participate in public discussions leading
to the formulation of government policies and their effective implementation. In Valmonte v. Belmonte, Jr.27
the Court explained that an informed citizenry is essential to the existence and proper functioning of any
democracy, thus:
An essential element of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the people's will.
Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit.
Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the
citizenry. The people are equally concerned with this proceeding and have the right to participate therein in
order to protect their interests. The extent of their participation will largely depend on the information gathered
and made known to them. In other words, the right to information really goes hand-in-hand with the
constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the
widening role of the citizenry in governmental decision-making as well as in checking abuse in the
government.28 The cases of Taada v. Tuvera29 and Legaspi v. Civil Service Commission30 have recognized
a citizen's interest and personality to enforce a public duty and to bring an action to compel public officials and
employees to perform that duty.
Section 4(b) limits or obstructs the power of Congress to secure from PCGG members and staff information
and other data in aid of its power to legislate. Again, this must not be countenanced. In Senate v. Ermita,31
this Court stressed:
To the extent that investigations in aid of legislation are generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the
people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public
concern. The citizens are thereby denied access to information which they can use in formulating their own
opinions on the matter before Congress opinions which they can then communicate to their representatives
and other government officials through the various legal means allowed by their freedom of expression.
A statute may be declared unconstitutional because it is not within the legislative power to enact; or it creates
or establishes methods or forms that infringe constitutional principles; or its purpose or effect violates the
Constitution or its basic principles.32 As shown in the above discussion, Section 4(b) is inconsistent with
Article VI, Section 21 (Congress' power of inquiry), Article XI, Section 1 (principle of public accountability),
Article II, Section 28 (policy of full disclosure) and Article III, Section 7 (right to public information).
Significantly, Article XVIII, Section 3 of the Constitution provides:
All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.
The clear import of this provision is that all existing laws, executive orders, proclamations, letters of instructions
and other executive issuances inconsistent or repugnant to the Constitution are repealed.
Jurisprudence is replete with decisions invalidating laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances inconsistent with the Constitution. In Pelaez v. Auditor General,33
the Court considered repealed Section 68 of the Revised Administrative Code of 1917 authorizing the
Executive to change the seat of the government of any subdivision of local governments, upon the approval of
the 1935 Constitution. Section 68 was adjudged incompatible and inconsistent with the Constitutional grant of

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limited executive supervision over local governments. In Islamic Da'wah Council of the Philippines, Inc., v.
Office of the Executive Secretary,34 the Court declared Executive Order No. 46, entitled "Authorizing the
Office on Muslim Affairs to Undertake Philippine Halal Certification," void for encroaching on the religious
freedom of Muslims. In The Province of Batangas v. Romulo,35 the Court declared some provisions of the
General Appropriations Acts of 1999, 2000 and 2001 unconstitutional for violating the Constitutional precept on
local autonomy. And in Ople v. Torres,36 the Court likewise declared unconstitutional Administrative Order No.
308, entitled "Adoption of a National Computerized Identification Reference System," for being violative of the
right to privacy protected by the Constitution.
These Decisions, and many others, highlight that the Constitution is the highest law of the land. It is "the basic
and paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer. No act shall be valid, however noble its intentions, if it conflicts with the
Constitution."37 Consequently, this Court has no recourse but to declare Section 4(b) of E.O. No. 1 repealed
by the 1987 Constitution.
Significantly, during the oral arguments on September 21, 2006, Chairman Sabio admitted that should this
Court rule that Section 4(b) is unconstitutional or that it does not apply to the Senate, he will answer the
questions of the Senators, thus:
CHIEF JUSTICE PANGANIBAN:
Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it does not apply to the Senate,
will you answer the questions of the Senators?
CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a judge. I was here in the Supreme Court as Chief of Staff of
Justice Feria. I would definitely honor the Supreme Court and the rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if we say that?
CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I am concerned.
With his admission, Chairman Sabio is not fully convinced that he and his Commissioners are shielded from
testifying before respondent Senate Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the
said provision exempts him and his co-respondent Commissioners from testifying before respondent Senate
Committees concerning Senate Res. No. 455 utterly lacks merit.
Incidentally, an argument repeated by Chairman Sabio is that respondent Senate Committees have no power
to punish him and his Commissioners for contempt of the Senate.
The argument is misleading.
Article VI, Section 21 provides:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid
of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.

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It must be stressed that the Order of Arrest for "contempt of Senate Committees and the Philippine Senate"
was approved by Senate President Villar and signed by fifteen (15) Senators. From this, it can be concluded
that the Order is under the authority, not only of the respondent Senate Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of
Representatives, but also to any of their respective committees. Clearly, there is a direct conferral of power to
the committees. Father Bernas, in his Commentary on the 1987 Constitution, correctly pointed out its
significance:
It should also be noted that the Constitution explicitly recognizes the power of investigation not just of
Congress but also of "any of its committees." This is significant because it constitutes a direct conferral of
investigatory power upon the committees and it means that the means which the Houses can take in order to
effectively perform its investigative function are also available to the Committees.38
This is a reasonable conclusion. The conferral of the legislative power of inquiry upon any committee of
Congress must carry with it all powers necessary and proper for its effective discharge. Otherwise, Article VI,
Section 21 will be meaningless. The indispensability and usefulness of the power of contempt in a legislative
inquiry is underscored in a catena of cases, foreign and local.
In the 1821 case of Anderson v. Dunn,39 the function of the Houses of Congress with respect to the contempt
power was likened to that of a court, thus:
But the court in its reasoning goes beyond this, and though the grounds of the decision are not very clearly
stated, we take them to be: that there is in some cases a power in each House of Congress to punish for
contempt; that this power is analogous to that exercised by courts of justice, and that it being the well
established doctrine that when it appears that a prisoner is held under the order of a court of general
jurisdiction for a contempt of its authority, no other court will discharge the prisoner or make further inquiry into
the cause of his commitment. That this is the general ruleas regards the relation of one court to another must
be conceded.
In McGrain,40 the U.S. Supreme Court held: "Experience has shown that mere requests for such information
are often unavailing, and also that information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed." The Court, in Arnault v. Nazareno,41
sustained the Congress' power of contempt on the basis of this observation.
In Arnault v. Balagtas,42 the Court further explained that the contempt power of Congress is founded upon
reason and policy and that the power of inquiry will not be complete if for every contumacious act, Congress
has to resort to judicial interference, thus:
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon
reason and policy. Said power must be considered implied or incidental to the exercise of legislative power.
How could a legislative body obtain the knowledge and information on which to base intended legislation if it
cannot require and compel the disclosure of such knowledge and information if it is impotent to punish a
defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of
powers, making each branch supreme within the realm of its respective authority, it must have intended each
department's authority to be full and complete, independently of the other's authority or power. And how could
the authority and power become complete if for every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy,
because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or
dignity.43
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete,44 the Court
characterized contempt power as a matter of self-preservation, thus:

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The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the
government vested with the legislative power, independently of the judicial branch, asserts its authority and
punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis x x x.
Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings Corporation and its directors
and officers, this Court holds that the respondent Senate Committees' inquiry does not violate their right to
privacy and right against self-incrimination.
One important limitation on the Congress' power of inquiry is that "the rights of persons appearing in or
affected by such inquiries shall be respected." This is just another way of saying that the power of inquiry must
be "subject to the limitations placed by the Constitution on government action." As held in Barenblatt v. United
States,45 "the Congress, in common with all the other branches of the Government, must exercise its powers
subject to the limitations placed by the Constitution on governmental action, more particularly in the context of
this case, the relevant limitations of the Bill of Rights."
First is the right to privacy.
Zones of privacy are recognized and protected in our laws.46 Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard
we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right"
and "the right most valued by civilized men,"47 but also from our adherence to the Universal Declaration of
Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and
"everyone has the right to the protection of the law against such interference or attacks."48
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly
create zones of privacy. It highlights a person's "right to be let alone" or the "right to determine what, how
much, to whom and when information about himself shall be disclosed."49 Section 2 guarantees "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." Section 3 renders inviolable the "privacy of communication
and correspondence" and further cautions that "any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding."
In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited
a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable
government intrusion.50 Applying this determination to these cases, the important inquiries are: first, did the
directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and
second, did the government violate such expectation?
The answers are in the negative. Petitioners were invited in the Senate's public hearing to deliberate on
Senate Res. No. 455, particularly "on the anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT),
and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their
respective board of directors." Obviously, the inquiry focus on petitioners' acts committed in the discharge of
their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation.
Consequently, they have no reasonable expectation of privacy over matters involving their offices in a
corporation where the government has interest. Certainly, such matters are of public concern and over which
the people have the right to information.
This goes to show that the right to privacy is not absolute where there is an overriding compelling state
interest. In Morfe v. Mutuc,51 the Court, in line with Whalen v. Roe,52 employed the rational basis relationship
test when it held that there was no infringement of the individual's right to privacy as the requirement to
disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption,
maintain a standard of honesty in public service, and promote morality in public administration.53 In Valmonte
v. Belmonte,54 the Court remarked that as public figures, the Members of the former Batasang Pambansa

126
enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer
scrutiny. Taking this into consideration, the Court ruled that the right of the people to access information on
matters of public concern prevails over the right to privacy of financial transactions.
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in
millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for
the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as
well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent
corruption and formulate remedial measures and policy determination regarding PCGG's efficacy. There being
no reasonable expectation of privacy on the part of those directors and officers over the subject covered by
Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate
Committees.
Anent the right against self-incrimination, it must be emphasized that this right maybe invoked by the said
directors and officers of Philcomsat Holdings Corporation only when the incriminating question is being asked,
since they have no way of knowing in advance the nature or effect of the questions to be asked of them."55
That this right may possibly be violated or abused is no ground for denying respondent Senate Committees
their power of inquiry. The consolation is that when this power is abused, such issue may be presented before
the courts. At this juncture, what is important is that respondent Senate Committees have sufficient Rules to
guide them when the right against self-incrimination is invoked. Sec. 19 reads:
Sec. 19. Privilege Against Self-Incrimination
A witness can invoke his right against self-incrimination only when a question tends to elicit an answer that will
incriminate him is propounded to him. However, he may offer to answer any question in an executive session.
No person can refuse to testify or be placed under oath or affirmation or answer questions before an
incriminatory question is asked. His invocation of such right does not by itself excuse him from his duty to give
testimony.
In such a case, the Committee, by a majority vote of the members present there being a quorum, shall
determine whether the right has been properly invoked. If the Committee decides otherwise, it shall resume its
investigation and the question or questions previously refused to be answered shall be repeated to the witness.
If the latter continues to refuse to answer the question, the Committee may punish him for contempt for
contumacious conduct.
The same directors and officers contend that the Senate is barred from inquiring into the same issues being
litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution of
criminal or administrative action should not stop or abate any inquiry to carry out a legislative purpose.
Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman Sabio and his
Commissioners, will be respected by respondent Senate Committees, it their duty to cooperate with them in
their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every
citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify
fully with respect to matters within the realm of proper investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and
Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation,
as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent
Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No.
455.

127
WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for being moot. The petitions
in G.R Nos. 174318 and 174177 are likewise DISMISSED.
Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. Respondent Senate Committees'
power of inquiry relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo L. Sabio and
Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and Julio
Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well as its directors and officers,
petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae Ad Testificandum issued by
respondent Senate Committees directing them to appear and testify in public hearings relative to Senate
Resolution No. 455.
SO ORDERED.

128

ABDULA V GUIANI
THIRD DIVISION
G.R. No. 118821

February 18, 2000

MAYOR BAI UNGGIE D. ABDULA and ODIN ABDULA, petitioners,

vs.
HON. JAPAL M. GUIANI, in his capacity as Presiding Judge, of Branch 14 of the Regional Trial Court of
Cotabato City, respondent.
GONZAGA-REYES, J.:
At bench is a petition for certiorari and prohibition to set aside the warrant of arrest issued by herein
respondent Japal M. Guiani, then presiding judge of Branch 14 of the Regional Trial Court of Cotabato City,
ordering the arrest of petitioners without bail in Criminal Case No. 2376 for murder.
The antecedent facts of the case are as follows:
On 24 June 1994, a complaint for murder, docketed as I.S. No. 94-1361, was filed before the Criminal
Investigation Service Command, ARMM Regional Office XII against herein petitioners and six (6) other
persons1 in connection with the death of a certain Abdul Dimalen, the former COMELEC Registrar of
Kabuntalan, Maguindanao.2 The complaint alleged that herein petitioners paid the six other respondents the
total amount of P200,000.00 for the death of Abdul Dimalen.3
Acting on this complaint, the Provincial Prosecutor of Maguindanao, Salick U. Panda, in a Resolution dated 22
August 19944, dismissed the charges of murder against herein petitioners and five other respondents on a
finding that there was no prima facie case for murder against them. Prosecutor Panda, however,
recommended the filing of an information for murder against one of the respondents, a certain Kasan Mama.
Pursuant to this Resolution, an information for murder was thereafter filed against Kasan Mama before the sala
of respondent Judge.1wphi1.nt
In an Order dated 13 September 19945, respondent Judge ordered that the case, now docketed as Criminal
Case No. 2332, be returned to the Provincial Prosecutor for further investigation. In this Order, respondent
judge noted that although there were eight (8) respondents in the murder case, the information filed with the
court "charged only one (1) of the eight (8) respondents in the name of Kasan Mama without the necessary
resolution required under Section 4, Rule 112 of the Revised Rules of Court to show how the investigating
prosecutor arrived at such a conclusion." As such, the respondent judge reasons, the trial court cannot issue
the warrant of arrest against Kasan Mama.
Upon the return of the records of the case to the Office of the Provincial Prosecutor for Maguindanao, it was
assigned to 2nd Assistant Prosecutor Enok T. Dimaraw for further investigation. In addition to the evidence
presented during the initial investigation of the murder charge, two new affidavits of witnesses were submitted
to support the charge of murder against herein petitioners and the other respondents in the murder complaint.
Thus, Prosecutor Dimaraw treated the same as a refiling of the murder charge and pursuant to law, issued
subpoena to the respondents named therein.6 On December 6, 1994, herein petitioners submitted and filed
their joint counter-affidavits.
After evaluation of the evidence, Prosecutor Dimaraw, in a Resolution dated 28 December 1994,7 found a
prima facie case for murder against herein petitioners and three (3) other respondents.8 He thus
recommended the filing of charges against herein petitioners Bai Unggie Abdula and Odin Abdula, as
principals by inducement, and against the three (3) others, as principals by direct participation.
Likewise in this 28 December 1994 Resolution, Provincial Prosecutor Salick U. Panda, who conducted the
earlier preliminary investigation of the murder charge, added a notation stating that he was inhibiting himself

129
from the case and authorizing the investigating prosecutor to dispose of the case without his approval. The
reasons he cited were that the case was previously handled by him and that the victim was the father-in-law of
his son.9
On 2 January 1995, an information for murder dated 28 December 199410 was filed against the petitioner
spouses and Kasan Mama, Cuenco Usman and Jun Mama before Branch 14 of the Regional Trial Court of
Cotabato City, then the sala of respondent judge. This information was signed by investigating prosecutor
Enok T. Dimaraw. A notation was likewise made on the information by Provincial Prosecutor Panda, which
explained the reason for his inhibition.11
The following day, or on 3 January 1995, the respondent judge issued a warrant12 for the arrest of petitioners.
Upon learning of the issuance of the said warrant, petitioners filed on 4 January 1995 an Urgent Ex-parte
Motion13 for the setting aside of the warrant of arrest on 4 January 1995. In this motion, petitioners argued that
the enforcement of the warrant of arrest should be held in abeyance considering that the information was
prematurely filed and that the petitioners intended to file a petition for review with the Department of Justice.
A petition for review14 was filed by the petitioners with the Department of Justice on 11 January 1995.15
Despite said filing, respondent judge did not act upon. petitioner's pending Motion to Set Aside the Warrant of
Arrest.
Hence, this Petition for Certiorari and Prohibition wherein petitioners pray for the following:
1.
upon filing of this petition, a temporary restraining order be issued enjoining the implementation and
execution of the order of arrest dated January 3, 1995 and enjoining the respondent judge from further
proceeding with Criminal Case No. 2376 entitled People of the Philippines vs. Bai Unggie D. Abdula, et al.
upon such bond as may be required by the Honorable Court;
2.

this petition be given due course and the respondent be required to answer;

3.
after due hearing, the order of arrest dated January 3, 1995 be set aside and declared void ab initio and
the respondent judge be disqualified from hearing Criminal Case No. 2376 entitled People of the Philippines
vs. Bai Unggie D. Abdula, et al.16
In a Resolution17 dated 20 February 1995, this Court resolved to require respondent judge to submit a
comment to the petition. The Court further resolved to issue a temporary restraining order18 enjoining the
respondent judge from implementing and executing the Order of Arrest dated 3 January 1995 and from further
proceeding with Criminal Case No. 2376.
At the onset, it must be noted that petitions for certiorari and prohibition require that there be no appeal, nor
any plain, speedy and adequate remedy in the ordinary course of law available to the petitioner.19 In the
instant case, it cannot be said that petitioners have no other remedy available to them as there is pending
before the lower court an Urgent Motion20 praying for the lifting and setting aside of the warrant of arrest.
Ordinarily, we would have dismissed the petition on this ground and let the trial court decide the pending
motion. However, due to the length of time that the issues raised in the petition have been pending before the
courts, it behooves us to decide the case on the merits in order to preclude any further delay in the resolution
of the case.
Respondent Japal M. Guiani retired from the judiciary on 16 April 1996. For this reason, respondent is no
longer the presiding judge of the Regional Trial Court Branch 14 of Cotabato City; and the prayer of petitioner
as to respondent's disqualification from hearing Criminal Case No. 2376 is now moot and academic. Thus,
there remain two issues left for the determination of the Court: first, the legality of the second information for
murder filed before respondent's court; and second, the validity of the warrant of arrest issued against
petitioners.

130
With respect to the first issue, petitioners aver that it is the respondent judge himself who is orchestrating the
filing of the alleged murder charge against them. In support, petitioners cite five (5) instances wherein
respondent judge allegedly issued illegal orders in a mandamus case pending in respondent's sala filed
against petitioner Mayor Bai Unggie Abdula. These allegedly illegal orders formed the basis for a criminal
complaint which they filed on 6 October 1994 against respondent and ten (10) others before the Office of the
Ombudsman for Mindanao.21 In this complaint, herein petitioners alleged that the respondent judge illegally
ordered the release of the total amount of P1,119,125.00 from the municipal funds of Kabuntalan, Mindanao to
a certain Bayoraiz Saripada, a purported niece of respondent judge. The Office of the Ombudsman for
Mindanao, in an Order22 dated 12 December 1994, found "sufficient basis to proceed with the preliminary
investigation of the case" and directed the respondents therein to file their respective counter-affidavits and
controverting evidence. From these facts, petitioners argue, it is clear that it is the respondent judge himself
who is orchestrating and manipulating the charges against the petitioner.
Petitioners further state that respondent judge exhibited extreme hostility towards them after the filing of the
said complaint before the Ombudsman. Petitioners claim that immediately after the issuance of the Order of
the Ombudsman requiring respondent judge to file his counter-affidavit, respondent allegedly berated petitioner
Bai Unggie Abdula in open court when she appeared before him in another case Allegedly, in full view of the
lawyers and litigants, respondent judge uttered the following words in the Maguindanaoan dialect:
If I cannot put you in jail within your term, I will cut my neck. As long as I am a judge here, what I want will be
followed.23
Respondent judge, in compliance with the Order of this Court, filed a Comment dated 3 March 1995.24 In this
Comment, he argues that petitioners' enumeration of "incontrovertible facts" is actually a list of misleading facts
which they are attempting to weave into Criminal Case No. 2376 for the purpose of picturing respondent as a
partial judge who abused his discretion to favor petitioner's accuser.25 He claims that the anti-graft charge filed
by petitioners against him is a harassment suit concocted by them when they failed to lay their hands on the
amount of P1,119,125.00 of municipal funds which respondent had previously ruled as rightfully belonging to
the municipal councilors of Kabuntalan, Maguindanao. Respondent vehemently denies having personally
profited from the release of the municipal funds. Moreover, respondent points out that the allegations in the
complaint seem to imply that the Vice Mayor of Kabuntalan, Bayoraiz Sarupada, was a party to the mandamus
case filed with respondent's court when in truth, there was no case filed by the vice mayor pending in his court.
Finally, respondent denies berating petitioner Bai Unggie Abdula and uttering the words attributed to him in the
petition. According to respondent, the last time petitioner Bai Unggie Abdula appeared in his sala on December
28, 1994, in connection with the lifting of an order for her apprehension in another case, he neither berated nor
scolded her and in fact, he even lifted the said order of arrest.
In its Comment with Urgent Motion for the Lifting of the Temporary Restraining Order dated 5 June 1995,26 the
Office of the Solicitor-General states that petitioner's allegation that the respondent judge was biased and
prejudiced was pure speculation as no proof was presented that respondent assumed the role of prosecutor.
Moreover, the OSG argued that the fact that the respondent judge and petitioners had pending cases against
each other did not necessarily result in the respondent's bias and prejudice.
An analysis of these arguments shows that these should have been properly raised in a motion for the
disqualification or inhibition of respondent judge. As previously stated however, the issue as to whether
respondent should be disqualified from proceeding with the case has been rendered moot and academic as he
is no longer hearing the case against petitioners. As such, there is no need for a prolonged discussion on this
issue. It is sufficient to say that in order to disqualify a judge on the ground of bias and prejudice, petitioner
must prove the same by clear and convincing evidence.27 This is a heavy burden which petitioners have failed
to discharge. This Court has to be shown acts or conduct of the judge clearly indicative of arbitrariness or
prejudice before the latter can be branded the stigma of being biased and partial.28
Petitioners next argue that the act of respondent in motu proprio ordering a reinvestigation of the murder
charge against them is another indication of the latter's bias and prejudice.29 They claim that the filing of their

131
complaint against respondent motivated the latter's Order of 13 September 1994 which ordered the return of
the records of the murder case to the provincial prosecutor. Furthermore, they posit that the latter had no
authority to order the reinvestigation considering that same had already been dismissed as against them by the
provincial prosecutor in his Resolution dated 22 August 1994.
A review of the pertinent dates in the petition however show that respondent could not have been motivated by
the Ombudsman's complaint when he issued the 13 September 1994 Order. Petitioner Bai Unggie Abdula filed
the complaint before the Ombudsman of Cotabato City on October 6, 199430 or about a month after the
issuance of the 13 September 1994 Order. As such, when respondent issued the said Order, the same could
not have been a retaliatory act considering that at that time, there was as yet no complaint against him.
With respect to the allegation that the respondent had no legal authority to order a reinvestigation of the
criminal charge considering that the said charge had been previously dismissed as against them, we hold that
respondent did not abuse his discretion in doing so.31
It is true that under the circumstances, the respondent judge, upon seeing that there were no records attached
to the complaint, could have simply ordered the office of the provincial prosecutor to forward the same. Upon
receipt of these records, respondent judge would then have sufficient basis to determine whether a warrant of
arrest should issue. However, from the bare terms of the questioned order alone, we fail to see any illegal
reason that could have motivated the judge in issuing the same. The order merely stated that the records of
the case should be returned to the Office of the Provincial Prosecutor for further investigation or
reinvestigation. He did not unduly interfere with the prosecutor's duty to conduct a preliminary investigation by
ordering the latter to file an information against any of the respondents or by choosing the fiscal who should
conduct the reinvestigation which are acts certainly beyond the power of the court to do.32 It was still the
prosecutor who had the final say as to whom to include in the information.33
As pointed out by the Office of the Solicitor General, petitioners only imputed bias against the respondent
judge and not against the investigating prosecutor.34 Consequently, this imputation is of no moment as the
discretion to file an information is under the exclusive control and supervision of the prosecutor and not of
respondent judge. Furthermore, petitioners cannot claim that they were denied due process in the
reinvestigation of the charges against them as they actively participated therein by submitting their joint
counter-affidavit.
Petitioners likewise allege that the information charging petitioners with murder is null and void because it was
filed without the authority of the Provincial Prosecutor. They note that in the Resolution dated 28 December
1994 and in the corresponding information, it clearly appears that the same were not approved by the
Provincial Prosecutor as it was signed only by the investigating prosecutor, Anok T. Dimaraw.
Petitioners' contention is not well-taken.
The pertinent portion of the Rules of Court on this matter state that "(n)o complaint or information shall be filed
or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city
fiscal or chief state prosecutor (emphasis ours)." In other words, a complaint or information can only be filed if
it is approved or authorized by the provincial or city fiscal or chief state prosecutor.
In the case at bench, while the Resolution and the Information were not approved by Provincial Prosecutor
Salick U. Panda, the filing of the same even without his approval was authorized. Both the Resolution and
information contain the following notation:*
The herein Provincial Prosecutor is inhibiting himself from this case and Investigating Prosecutor Enok
Dimaraw may dispose of the case without his approval on the following ground:
That this case has been previously handled by him, and whose findings differ from the findings of Investigating
Prosecutor Dimaraw; and the victim is a relative by affinity, he being a father-in-law of his son.

132

(Signed) Salick U. Panda

Provincial Prosecutor
It must be stressed that the Rules of Court speak of authority or approval by the provincial, city, or chief state
prosecutor. The notation made by Prosecutor Panda clearly shows that Investigating Prosecutor Dimaraw was
authorized to "dispose of the case without his approval." In issuing the resolution and in filing the information,
the investigating prosecutor was acting well within the authority granted to him by the provincial prosecutor.
Thus, this resolution is sufficient compliance with the aforecited provision of the Rules of Court.
Having thus ruled on the validity of the information filed against the respondents, we now address the issue as
to the legality of the warrant of arrest issued by respondent judge by virtue of the said information.
On this issue, petitioners, citing the case of Allado vs. Diokno 35 argue that the warrant for his arrest should be
recalled considering that the respondent judge "did not personally examine the evidence nor did he call the
complainant and his witnesses in the face of their incredible accounts." As proof, he points to the fact that the
information was filed at around 4:00 p.m. of the January 2, 1995 and the order of arrest was immediately
issued the following day or on January 3, 1995. Moreover, petitioner argues, respondent judge did not even
issue an order stating that there is probable cause for the issuance of the warrant of arrest, a clear violation of
the guidelines set forth in the Allado case.
Respondent, in his Comment, denies any irregularity in the issuance of the warrant of arrest. He argues as
follows:
Written authority having been granted by the Provincial Prosecutor, as required by the third paragraph of
Section 4, Rule 112 of (the) Rules on Criminal Procedure, and there having been no reason for the respondent
to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was
conducted and that probable cause was found to exist as against those charged in the Information filed, and
recognizing the prosecution's legal authority to initiate and control criminal prosecution (Rule 110, Section 5)
and considering that the court cannot interfere in said prosecution's authority (People vs. Moll, 68 Phil. 626),
the respondent issued the warrant for the arrest of the accused pursuant to paragraph (a), section 6, Rule
112;36
The OSG, in defending the act of respondent judge, argues that the allegation that respondent did not
personally examine the evidence is not supported by current jurisprudence. In support, the OSG invokes the
pronouncement in Soliven vs. Makasiar 37 that "(I)n satisfying himself of the existence of probable cause, the
judge is not required to personally examine the complainant and his witnesses." Moreover, the OSG points out
that the judge enjoys a wide degree of latitude in the determination of probable cause for the issuance of
warrants of arrest depending on the circumstances of each case.38
The OSG further argues that the case of Allado vs. Diokno, relied upon by petitioners, has no application in the
case at bar considering that in the cited case, the documents submitted before the court failed to establish any
probable cause as they were conflicting and contradictory. Significantly, the OSG continues, petitioners could
not point out a single flaw in the evidence presented by the prosecutor to negate the existence of probable
cause. Finally, the OSG points out that petitioner's unfounded allegations cannot prevail over the well-settled
rule that official duty is presumed to be regularly performed.39
After a careful analysis of these arguments, we find merit in the contention of petitioners.
The pertinent provision of the Constitution reads:
Sec. 2 [Article III]. 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

133
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.)
It must be stressed that the 1987 Constitution requires the judge to determine probable cause "personally," a
requirement which does not appear in the corresponding provisions of our previous constitutions. This
emphasis evinces the intent of the framers to place a greater degree of responsibility upon trial judges than
that imposed under previous Constitutions.40
In Soliven vs. Makasiar, this Court pronounced:
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard
the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.
Ho vs. People 41 summarizes existing jurisprudence on the matter as follows:
Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the
determination of probable cause by the prosecutor is for a purpose different from that which is to be made by
the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and
should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether
a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their
findings on one and the same proceeding or evidence, there should be no confusion as to their distinct
objectives.
Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in
finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the
contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused
for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have
supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on
the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable cause is lodged in him by no less than
the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed
up the litigation process by forwarding to the latter not only the information and his bare resolution finding
probable cause, but also so much of the records and the evidence on hand as to enable the His Honor to make
his personal and separate judicial finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be
submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the purpose of ordering the arrest of an
accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if
any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of
the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the
prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official duties and functions, which in turn gives his report
the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his
bounden duty if he relies merely on the certification or the report of the investigating officer. (citations omitted)

134

In the case at bench, respondent admits that he issued the questioned warrant as there was "no reason for
(him) to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation
was conducted and that probable cause was found to exist as against those charged in the information filed."
The statement is an admission that respondent relied solely and completely on the certification made by the
fiscal that probable cause exists as against those charged in the information and issued the challenged warrant
of arrest on the sole basis of the prosecutor's findings and recommendations. He adopted the judgment of the
prosecutor regarding the existence of probable cause as his own.
Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties,
which in turn gives his report the presumption of accuracy, nothing less than the fundamental law of the land
commands the judge to personally determine probable cause in the issuance of warrants of arrest. A judge
fails in this constitutionally mandated duty if he relies merely on the certification or report of the investigating
officer.
To be sure, we cannot determine beforehand how cursory or exhaustive the respondent's examination of the
records should be.42 The extent of the judge's examination depends on the exercise of his sound discretion as
the circumstances of the case require. In the case at bench, the respondent had before him two different
informations and resolutions charging two different sets of suspects. In the face of these conflicting resolutions,
it behooves him not to take the certification of the investigating prosecutor at face value. The circumstances
thus require that respondent look beyond the bare certification of the investigating prosecutor and examine the
documents supporting the prosecutor's determination of probable cause. The inordinate haste that attended
the issuance of the warrant of arrest and respondent's own admission are circumstances that tend to belie any
pretense of the fulfillment of this duty.1wphi1.nt
Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the certification
made by the investigating prosecutor has abdicated his duty under the Constitution to determine on his own
the issue of probable cause before issuing a warrant of arrest. Consequently, the warrant of arrest should be
declared null and void.
WHEREFORE, premises considered, the petition for certiorari and prohibition is GRANTED. The temporary
restraining order we issued on 20 February 1995 in favor of petitioners insofar as if enjoins the implementation
and execution of the order of arrest dated 3 January 1995 is made permanent. Criminal Case No. 2376 is
REMANDED to Branch 14 of the Regional Trial Court of Cotabato City for a proper determination of whether a
warrant of arrest should be issued and for further proceedings.
SO ORDERED.

135

PEOPLE V ESTRADA
SECOND DIVISION
[G.R. No. 124461. September 25, 1998]
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE JUDGE ESTRELLA T. ESTRADA,
PRESIDING JUDGE, RTC, BRANCH 83, QUEZON CITY; and AIDEN LANUZA, respondents.
DECISION
MARTINEZ, J.:
The People of the Philippines, through this petition for review, seeks the reversal of the order of respondent
Judge Estrella T. Estrada, dated December 7, 1995, which granted private respondent Aiden Lanuzas motion
to quash Search Warrant No. 958 (95), as well as the order dated April 1, 1996 denying petitioners motion for
reconsideration of the earlier order.
On June 27, 1995, Atty. Lorna Frances F. Cabanlas, Chief of the Legal, Information and Compliance Division
(LICD) of the Bureau of Food and Drugs (BFAD), filed with the Regional Trial Court of Quezon City, Branch 83,
an application for the issuance of a search warrant against Aiden Lanuza of 516 San Jose de la Montana
Street, Mabolo, Cebu City, for violation of Article 40 (k) of Republic Act 7394 (The Consumer Act of the
Philippines).
In her application for search warrant, Atty. Cabanlas alleged, among others, as follows:
1. On June 5, 1995, in my official capacity as Attorney V and Chief of LICD, I received reports from SPO4
Manuel P. Cabiles of the Regional Intelligence Group IV, Intelligence Command of the PNP that certain
1.a. Aiden Lanuza of 516 San Jose de la Montana Street, Mabolo, Cebu City sold to said Officer Cabiles
various drug products amounting to Seven Thousand Two Hundred Thirty Two Pesos (P 7,232.00) on May 29,
1995;
1.b. Said Aiden Lanuza or her address at 516 San Jose de la Montana Street, Mabolo, Cebu City has no
license to operate, distribute, sell or transfer drug products from the BFAD;
1.c. Distribution, sale or offer for sale or transfer of drug products without license to operate from BFAD is in
violation of Art. 40 (k) of RA 7394 (or the Consumer Act).
2. In support of the report, the subscribed affidavit of Mr. Cabiles, his report and the various drug products
sold and purchased contained in a (sic) plastic bags marked Lanuza Bag 1 of 1 and Lanuza Bag 2 of 2 were
enclosed; and the same are likewise submitted herewith.
xxx

xxx

xxx. [1] (Emphasis supplied)

The application, however, ended with the statement that the warrant is to search the premises of another
person at a different address:
3. This is executed to support affiants application for a search warrant on the premises of Belen Cabanero at
New Frontier Village, Talisay Cebu.[2] (Emphasis supplied)
In support of the application, the affidavit of SPO4 Manuel P. Cabiles, a member of the Regional Intelligence
Group IV of the PNP Intelligence Command, Camp Vicente Lim, Canlubang, Laguna, was attached thereto,
wherein he declared that:
1. Upon the request for assistance by BFAD, he conducted surveillance for persons distributing, selling or
transferring drug products without license to operate from BFAD.

136
2. On May 29, 1995, a certain Aiden Lanuza of 516 San Jose de la Montana St., Mabolo, Cebu City sold to
him various drug products amounting to P7,232.00 and
3. Upon further verification in the BFAD registry of licensed persons or premises, the said person and place
have in fact no license to operate.
4. Earlier than May 29, 1995, affiant saw a delivery of drug products from the residence of Mrs. Lanuza in 516
San Jose de la Montana St., Mabolo, Cebu City to another person.
5. Accompanying this affidavit are the various products sold to/and purchased by the affiant contained in two
(2) plastic bags marked Lanuza Bag 1 of 1 and Lanuza Bag 2 of 2.
This is executed in support of the affiants report to BFAD and for whatever legitimate purpose this may
serve. [3] (Emphasis supplied)
The BFAD also submitted with the application a copy of the sketch[4] of the location of Aiden Lanuzas
residence at her stated address.
On the same day the application was filed, the respondent Judge issued Search Warrant No. 958 (95), which
reads in full:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
BRANCH 83 QUEZON CITY
PEOPLE OF THE PHILIPPINES, Plaintiff,
- versus -

SEARCH WARRANT NO. 958 (95)

AIDEN LANUZA,
Defendant.
X---------------------------X
SEARCH WARRANT
It appears to the satisfaction of this Court, after examining under oath Atty. Lorna Frances F. Cabanlas, Chief
of the Legal Information and Compliance Division (LICD) of the Bureau of Food and Drugs (BFAD) and her
witness, Manuel P. Cabiles, member of the Intelligence Group IV, Intelligence Command, PNP, Camp Vicente
Lim, Canlubang, Laguna, that there are reasonable grounds to believe that a violation of Article 40(k) in
relation to Article 41 of Republic Act No. 7394 (Consumer Act) has been committed or about to be committed
and there are good and sufficient reasons to believe that Ms. Aiden Lanuza of 516 San Jose dela Montana
Street, Cebu City has in her possession and control at said address the following described properties:
medicines and drugs of undetermined quantity among which are Bricanyl Tablet, Bisolvon Tablet, Buscopan
Tablet, Buscopan Ampoule, Mucosolvan Ampoule, Persantin Tablet, Tegretol Tablet, PZA-Ciba Tablet,
Voltaren Tablet, Zantac Ampoule, Ventolin Tablet, Ventolin Inhaler, Dermovate Cream, Fortum Vial, Zinacef
Vial, Feldene 1M Ampoule, Norvasoc Tablet, Bactrim Forte Tablet, Rochephin Vial, Tilcotil Tablet, Librax
Tablet, Methergin Tablet and Tagamet Tablet
which she is selling, distributing and transferring without the necessary license from the Department of Health.

137
You are hereby commanded to make an immediate search at any time of the DAY or NIGHT of the premises
above-described and forthwith seize and take possession of the undetermined amount of drugs and medicines
subject of the offense and to bring the same to this Court to be dealt with as the law directs.
You are further directed to submit a return of this Search Warrant within ten (10) days from today.
This Search Warrant is valid within a period of ten (10) days from the date of issue.
GIVEN UNDER THE HAND AND SEAL of this Court this 27th day of June 1995 at Quezon City.
(Sgd.)ESTRELLA T. ESTRADA
Second Vice Executive Judge[5]
(Emphasis supplied)
On June 28, 1995, the search warrant was served at private respondent Lanuzas residence at the indicated
address by a composite team of policemen from the PNP 7th Criminal Investigation Command, Camp Sotero
Cabahug, Cebu City.
How the search warrant was implemented was briefly narrated in the Joint Affidavit,[6] dated June 29, 1995, of
SPO2 Fructuoso Bete, Jr. and SPO2 Marckbilly Capalungan, both members of the search and seizure team.
They stated in their affidavit that their team, armed with the search warrant, conducted a raid at the premises
of one AIDEN LANUZA of 516 San Jose de la Montana Street, Cebu City x x x; that the raid was witnessed
by Luis Rivera, Demetrio Panimdim and Francisco Ojales, both (sic) Brgy. Tanod of Kasambagan, Cebu City;
that the service of the (search) warrant resulted in the confiscation of fifty-two (52) cartoons (sic) of assorted
medicines from the possession and control of AIDEN LANUZA; and that the said items were brought to the
7CICRO office for detailed inventory headed by Atty. Lorna F. Cabanlas, Chief of the Legal Information and
Compliance Division of the BFAD, Manila.[7] (Emphasis supplied)
The present petition, however, narrates a different account of what actually happened during the
implementation of the search warrant. Paragraph 5 of the petition states: At the commencement of the
search, the members of the team discovered that the premises described as 516 San Jose de la Montana St.,
Mabolo, Cebu City was actually a five thousand (5,000) square meter compound containing at least fifteen (15)
structures which are either leased residences, offices, factories, workshops or warehouse. The policemen
proceeded to search the residence of private respondent Lanuza at Lot No. 41 of said address. Finding no
drug products thereat, they proceeded to search a nearby warehouse at Lot No. 38 within the same compound
and address above stated. This search yielded fifty-two (52) cartons of assorted drug products which were
then inventoried in due course. x x x.[8] (Emphasis supplied)
In an order[9] dated July 3, 1995, the respondent Judge noted the inventory of the seized drugs and authorized
the BFAD to retain custody of the same, to have samples of the drugs analyzed and be brought to the
registered drug manufacturers for parallel testing.
On August 22, 1995, private respondent Aiden Lanuza filed a verified motion[10] praying that Search Warrant
No. 958 (95) be quashed and that the seized articles be declared inadmissible in any proceeding and ordered
returned to the warehouse owned by Folk Arts Export & Import Company located at Lot No. 38 inside the
compound at 516 San Jose de la Montana Street, Cebu City. The motion is based on the grounds that the
search warrant is illegal and null and void because: (1) it was applied to search the premises of one Belen
Cabanero at New Frontier Village, Talisay, Cebu, but was issued to search the residence of private respondent
Aiden Lanuza at 516 San Jose de la Montana Street, Cebu City; (2) it was issued for a non-existing offense;
(3) Atty. Lorna Frances F. Cabanlas was not duly authorized by applicant BFAD to apply therefor; (4) it failed
to particularly describe the place to be searched and the things to be seized; (5) the applicant's witnesses had
no personal knowledge of the facts upon which it was issued; and (6) its implementation was unreasonable
as it was enforced on a different or wrong place which was lawfully occupied by a different or wrong
person.[11]

138
Atty. Lorna Frances Cabanlas, who appeared for the BFAD, opposed[12] the motion to quash the search
warrant, to which the private respondent countered with a reply.
After the contending parties had submitted their respective positions without further oral arguments, the
respondent Judge issued the assailed order[13] dated December 7, 1995, quashing Search Warrant No. 958
(95). Accordingly, the order dated July 3, 1995 was revoked and all the articles seized were declared
inadmissible in any and all proceedings against private respondent Aiden Lanuza. Also, the BFAD was
ordered to return at its expense all the seized items to the warehouse of Folk Arts Import & Export Company at
Lot No. 38, 516 San Jose de la Montana St., Mabolo, Cebu City within a period of fifteen (15) days from notice
of the said order.[14]
Petitioner's motion for reconsideration of the December 7, 1995 order was denied in an order[15] dated April 1,
1996, impelling petitioner to file the present petition asserting that the respondent Judge erred:
a) In holding that the defect appearing in BFAD's application for a search warrant is so "grave" in nature as to
warrant quashal of the search warrant issued thereunder, considering that such variance is actually a harmless
clerical error.
b) In holding that Atty. Cabanlas was not authorized by the BFAD to apply for a search warrant concerning
the unlicensed distribution of drugs, considering that the grant of BFAD authorization upon her to investigate
fake, misbranded, adulterated or unregistered drugs necessarily contemplates the authority to investigate the
unlicensed activities above noted.
c) In holding that applicant BFAD had failed to discharge the burden of proving probable cause for issuance of
a search warrant, by failing to present documentary proof indicating that private respondent had no license to
sell or distribute drug products, considering that under the authority of Carillo v. People (229 SCRA 386) the
BFAD only had the burden of proving the negative ingredient of the offense charged on the basis of the best
evidence procurable under the circumstances.
d) In holding that the place sought to be searched had not been described with sufficient particularity in SW
No. 958 (95), considering that Aiden Lanuza's residence at Lot No. 41, 516 San Jose de la Montana St.,
Mabolo, Cebu City was not so conspicuously or notoriously represented to the public as such by her as to
contradict the investigating and serving officers' perception of the outward appearance of her dwelling, which
led them to believe that the more general address of 516 San Jose de la Montana St., Mabolo, Cebu City
referred to her dwelling.
e) In ordering the return of the things seized, the possession of which is prohibited.[16]
We granted the petitioners application for the issuance of a temporary restraining order in a resolution[17]
dated June 26, 1996 and restrained the implementation of the assailed orders, effective immediately and until
further orders from this Court.
Private respondent Aiden Lanuza later filed her comment[18] on the petition, but petitioner's reply thereto was
not admitted by this Court in a resolution[19] dated January 13, 1997, for failure by the Solicitor General to file
the same within his first extension of thirty (30) days, that was granted, but with a warning that no further
extension would be given. Instead of filing his reply, the Solicitor General asked for two (2) more extensions of
time, which were denied.
Now to the assigned errors of the respondent Judge raised by petitioner.
The requirements for the issuance of a search warrant are inscribed in Section 2, Article III of the 1987
Constitution, to wit:

139
"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." (Emphasis supplied)
In quashing the subject search warrant, it is the finding of the respondent Judge that the application for its
issuance suffered from a grave defect, "which escaped (her) attention," considering that it was applied to
search the premises of one Belen Cabanero at New Frontier Village, Talisay, Cebu, but was issued to search
the residence of herein private respondent Aiden Lanuza at 516 San Jose de la Montana St., Cebu City.[20]
We nonetheless find such error in the application for search warrant a negligible defect.
The title of the questioned application, which reads:
"PEOPLE OF THE PHILIPPINES, Plaintiff,
- versus -

SEARCH WARRANT NO. 958 (95)

AIDEN LANUZA,
For: Violation of Article
516 San Jose de la
40 (k) in relation to
Montana Street, Mabolo,
Article 41 of Republic
Cebu City,
Act No. 7394 (or the
Defendant.
Consumer Act).
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x"[21] (Emphasis supplied)
and the allegations contained therein, pertinent portions of which we quote:
1. On June 5, 1995, in my official capacity as Attorney V and Chief of LICD, I received reports from SPO4
Manuel P. Cabiles of the Regional Intelligence Group IV, Intelligence Command of the PNP that certain
1.a. Aiden Lanuza of 516 San Jose de la Montana Street, Mabolo, Cebu City sold to said Officer Cabiles
various drug products amounting to Seven Thousand Two Hundred Thirty Two Pesos (P 7,232.00) on May 29,
1995;
1.b. Said Aiden Lanuza or her address at 516 San Jose de la Montana Street, Mabolo, Cebu City has no
license to operate, distribute, sell or transfer drug products from the BFAD;
xxx

xxx

xxx

2. In support of the report, the subscribed affidavit of Mr. Cabiles, his report and the various drug products
sold and purchased contained in a (sic) plastic bags marked Lanuza Bag 1 of 1 and Lanuza Bag 2 of 2 were
enclosed; and the same are likewise submitted herewith.
xxx

xxx

x x x. [22] (Emphasis supplied)

unmistakably reveal that the said application was specifically intended against private respondent Aiden
Lanuza of 516 San Jose de la Montana Street, Mabolo, Cebu City. She has been the only one identified in the
application, as well as in the aforequoted affidavit of SPO4 Manuel Cabiles upon which the application was
based, as having allegedly sold to said SPO4 Cabiles various drugs amounting to P7,232.00 on May 29, 1995,
without any license to do so, in alleged violation of Article 40 (k) of R.A. 7394. It is noteworthy that, as stated in
the above-quoted paragraph 2 of the application, the plastic bags which contained the seized drugs and which

140
were submitted together with the application, were marked as "Lanuza Bag 1 of 1" and "Lanuza Bag 2 of 2."
These markings with the name "Lanuza" obviously refer to no other than the herein private respondent. And
when the respondent Judge issued the search warrant, it was directed solely against private respondent Aiden
Lanuza at her address: 516 San Jose de la Montana Street, Mabolo, Cebu City.
The Solicitor General explained the error in the application by saying that on the same day applicant Atty.
Lorna Frances Cabanlas filed the questioned application on June 27, 1995, another application for search
warrant was also filed against one Belen Cabanero at her residence at New Frontier Village, Talisay, Cebu
City. This can be deduced from the following examination conducted by respondent Judge on Atty. Cabanlas:
"(COURT)
Q.

And who is your respondent?

A. Mrs. Aiden Lanuza and the other one is Belen Cabanero.

Q.

Where are they situated?

A. Mrs. Lanuza is situated in No. 516 San Jose de la Montana Street, Mabolo, Cebu City.
Q.

About the other?

A. New Frontier Village, Talisay, Cebu.

Q.

Do you have any specific address at New Frontier Village?

A. It was reported by Mr. Manuel Cabiles.

Q.

Will he be testifying?

A. Yes Ma'am. Your Honor, this is the vicinity of the New Frontier Village, Cebu (witness presenting a sketch)
(sic)
Q.

How about this San Jose de la Montana. This is just in Cebu City?

A. At 516 San Jose de la Montana Street, Mabolo, Cebu City."[23]

From the foregoing discussion, it is obvious that the name and address of one Belen Cabanero were
erroneously copied in paragraph 3 of the application in question. Such defect, as intimated earlier, is not of
such a gravity as to call for the invalidation of the search warrant.
There are, however, two (2) serious grounds to quash the search warrant.
Firstly, we cannot fault the respondent Judge for nullifying the search warrant as she was not convinced that
there was probable cause for its issuance due to the failure of the applicant to present documentary proof
indicating that private respondent Aiden Lanuza had no license to sell drugs.
It must be noted that in the application for search warrant, private respondent is charged with the specific
offense of selling drugs without the required license from the Department of Health, which is in violation of
Article 40 (k) of R. A. 7394, and penalized under Article 41 thereof. The said application was supported by the
affidavit of SPO4 Manuel Cabiles where, in paragraph 3 thereof, he declared that he made a "verification in the
BFAD registry of licensed persons or premises" and discovered that private respondent Aiden Lanuza had "no
license" to sell drugs.

141
We agree with the respondent Judge that applicant Atty. Lorna Frances Cabanlas should have submitted
documentary proof that private respondent Aiden Lanuza had no such license. Although no explanation was
offered by respondent Judge to support her posture, we hold that to establish the existence of probable cause
sufficient to justify the issuance of a search warrant, the applicant must show facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought to be searched."[24]
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 especially 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
application, the applicant must show a justifiable reason therefor during the examination by the judge. The
necessity of requiring stringent procedural safeguards before a search warrant can be issued is to give
meaning to the constitutional right of a person to the privacy of his home and personalties. As well stated by
this Court through former Chief Justice Enrique Fernando in Villanueva vs. Querubin:[25]
It is deference to ones personality that lies at the core of this right, but it could be also looked upon as a
recognition of a constitutionally protected area, primarily ones home but not necessarily thereto confined (Cf.
Hoffa v. United States, 385 U.S. 293 [1966]). What is sought to be guarded is a mans prerogative to choose
who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the
choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state,
however powerful, does not as such have access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of
his life (Cf. Schmerber v. California, 384 US 757, Brennam, J. and Boyd v. United States, 116 US 616, 630).
In the same vein, Landynski in his authoritative work, Search and Seizure and the Supreme Court (1966),
could fitly characterize this constitutional right as 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 (Ibid, p. 47). (Emphasis supplied)
In the case at bar, the best evidence procurable under the circumstances to prove that private respondent
Aiden Lanuza had no license to sell drugs is the certification to that effect from the Department of Health.
SPO4 Manuel could have easily procured such certification when he went to the BFAD to verify from the
registry of licensed persons or entity. No justifiable reason was introduced why such certification could not be
secured. Mere allegation as to the non-existence of a license by private respondent is not sufficient to
establish probable cause for a search warrant. The presumption of regularity cannot be invoked in aid of the
process when an officer undertakes to justify it.[26] We apply by analogy our ruling in 20th Century Fox Film
Corporation vs. Court of Appeals, et. al.:[27]
The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly
copied, was necessary for the validity of search warrants against those who have in their possession the
pirated films. The petitioners argument to the effect that the presentation of the master tapes at the time of
application may not be necessary as these would be merely evidentiary in nature and not determinative of
whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. The
court cannot presume that duplicate or copied tapes were necessarily reproduced from master tapes that it
owns.
The application for search warrants was directed against video tape outlets which allegedly were engaged in
the unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49.
The essence of a copyright infringement is the similarity or at least substantial similarity of the purported
pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to

142
compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter
is an unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be
established to satisfy the requirements of probable cause. Mere allegations as to the existence of the
copyrighted films cannot serve as basis for the issuance of a search warrant. (Emphasis supplied)
Secondly, the place sought to be searched had not been described with sufficient particularity in the
questioned search warrant, considering that private respondent Aiden Lanuza's residence is actually located at
Lot No. 41, 516 San Jose de la Montana St., Mabolo, Cebu City, while the drugs sought to be seized were
found in a warehouse at Lot No. 38 within the same compound. The said warehouse is owned by a different
person. Again, the respondent Judge is correct on this point.
This Court has held that the applicant should particularly describe the place to be searched and the person or
things to be seized, wherever and whenever it is feasible.[28] In the present case, it must be noted that the
application for search warrant was accompanied by a sketch[29]of the compound at 516 San Jose de la
Montana St., Mabolo, Cebu City. The sketch indicated the 2-storey residential house of private respondent
with a large "X" enclosed in a square. Within the same compound are residences of other people, workshops,
offices, factories and warehouse. With this sketch as the guide, it could have been very easy to describe the
residential house of private respondent with sufficient particularity so as to segregate it from the other buildings
or structures inside the same compound. But the search warrant merely indicated the address of the
compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. This description of the place to be
searched is too general and does not pinpoint the specific house of private respondent. Thus, the inadequacy
of the description of the residence of private respondent sought to be searched has characterized the
questioned search warrant as a general warrant, which is violative of the constitutional requirement.
While the questioned search warrant had all the characteristic of a general warrant, it was correctly
implemented. For, the searching team went directly to the house of private respondent Aiden Lanuza located
at Lot No. 41 inside the compound known as 516 San Jose de la Montana Street, Mabolo, Cebu City.
However, the team did not find any of the drug products which were the object of the search. Frustrated, and
apparently disappointed, the team then proceeded to search a nearby warehouse of Folk Arts Export & Import
Company owned by one David Po located at Lot No. 38 within the same compound. It was in the warehouse
that drug products were found and seized which were duly receipted. In the Joint Affidavit of SPO2 Fructuoso
Bete, Jr. and SPO2 Markbilly Capalungan, members of the searching team, is a statement that the confiscated
52 cartons of assorted medicines were found in the possession and control of private respondent Aiden
Lanuza. This is a blatant falsehood and is aggravated by the fact that this was committed by officers sworn to
uphold the law. In searching the warehouse of Folk Arts Export & Import Company owned by one David Po,
the searching team went beyond the scope of the search warrant. As the trial court aptly observed:
x x x. The verified motion to quash and reply also show that the search at the house of defendant-movant
yielded negative result and the confiscated articles were taken from another place which is the warehouse of
Folk Arts Import and Export Company owned by another person. In the return of the search warrant, it is
stated that Search Warrant No. 958 (95) was served at the premises of 516 San Jose dela Montana St., Cebu
City and that during the search, drug products were found and seized therefrom which were duly receipted.
Accompanying said return is the Joint Affidavit of two (2) members of the searching team, namely: SPO2
Froctuoso Bete and SPO2 Markbilly Capalingan, both of the 7th Criminal Investigation Command, PNP, with
station at Camp Sotero Cabahug, Gerardo Avenue, Cebu City which also mentioned only the address as 516
San Jose dela Montana St., Mabolo, Cebu City and the confiscation of 52 cartoons(sic) of assorted medicines
purportedly from the possession and control of defendant-movant. However, as indicated in the sketch
attached to the application for search warrant, said Folk Arts Import and Export Company is owned by one
David Po, which is a concrete proof that the searching team exceeded their authority by conducting a search
not only in the residence of defendant-movant Lanuza but also in another place which the applicant itself has
identified as belonging to another person, David Po. The foregoing are strong reasons to support the
conclusion that there has been an unreasonable search and seizure which would warrant the quashal of the
search warrant.[30]

143
The respondent Judge acted correctly in granting the motion to quash the search warrant.
WHEREFORE, the petition is hereby DENIED. The Temporary Restraining Order issued in a resolution dated
June 26, 1996 is hereby LIFTED.
SO ORDERED.

144

POEPL V CA, CASANOVA

THIRD DIVISION

G.R. No. 126379

June 26, 1998

PEOPLE OF THE PHILIPPINES, represented by Provincial Prosecutor FAUSTINO T. CHIONG, petitioner,

vs.
COURT OF APPEALS, JUDGE CAESAR CASANOVA, Presiding Judge, Regional Trial Court, Branch 80,
Malolos, Bulacan, AZFAR HUSSAIN, MOHAMMAD SAGED, MUJAHID KHAN, MOHAMMAD ASLAM and
MEHMOOD ALI, respondents.

NARVASA, C.J.:
In behalf of the People, the Solicitor General has perfected the appeal at bar under Rule 45 of the Rules of
Court from the Decision promulgated on September 11, 1996 of the Fourteenth Division of the Court of
Appeals. 1 Said judgment dismissed the People's petition for certiorari to invalidate (i) the Order of Judge
Caesar A. Casanova of Branch 80 of the Regional Trial Court dated February 9, 1996. 2 as well (ii) that dated
May 28, 1996 denying the People's motion for reconsideration. 3 Those orders were handed down in Criminal
Case No. 43-M-96, a case of illegal possession of explosives, after the accused had been arraigned and
entered a plea of not guilty to the charge. More particularly, the Order of February 9, 1996:
1)
quashed a search warrant (No. 1068 [95]) issued by Judge Marciano I. Bacalla of Branch 216 of the
Regional Trial Court at Quezon City on December 15, 1995, 4
2)

declared inadmissible for any purpose the items seized under the warrant, and

3)
directed the turnover of the amount of U.S. $5,750.00 to the Court within five (5) days "to be released
thereafter in favor of the lawful owner considering that said amount was not mentioned in the Search Warrant."
The antecedents, "culled from the records" by the Appellate Court, are hereunder set out.
1.
On December 14, 1995, S/Insp PNP James Brillantes applied for search warrant before Branch 261,
RTC of Quezon City against Mr. Azfar Hussain, who had allegedly in his possession firearms and explosives at
Abigail Variety Store, Apt. 1207 Area F, Bagong Buhay Avenue, Sapang Palay, San Jose del Monte, Bulacan.
2.
The following day, December 15, 1995, Search Warrant No. 1068 (95) against Mr. Hussain was issued
not at Abigail Variety Store but at Apt. No. 1, immediately adjacent (to) Abigail Variety Store resulting in the
arrest of four (4) Pakistani nationals and in the seizure of their personal belongings, papers and effects such as
wallet, wrist watches, pair of shoes, jackets, t-shirts, belts, sunglasses and travelling bags including cash
amounting to $3,550.00 and P1,500.00 aside from US$5,175.00 (receipted) which were never mentioned in
the warrant. The sum of $5,175.00 was however returned to the respondents upon order of the court on
respondents' motion or request. Included allegedly are one piece of dynamite stick; two pieces of plastic
explosives C-4 type and one (1) fragmentation grenade. But without the items described in the search warrant
are; (a) three (3) Ingram machine pistols; (b) four (4) gmm pistol; (c) blasting caps; (d) fuse; (e) assorted
chemical ingredients for explosives; and (f) assorted magazine assg and ammunitions.
3.
On December 19, 1995, three days after the warrant was served, a return was made without
mentioning the personal belongings, papers and effects including cash belonging to the private respondents.
There was no showing that lawful occupants were made to witness the search.

145
4.
On January 22, 1996, private respondents upon arraignment, pleaded not guilty to the offense charged;
**" and on the same date, submitted their "Extremely Urgent Motion (To Quash Search Warrant and to Declare
Evidence Obtained Inadmissible)," dated January 15, 1996;
5.
** According to the private respondents in their pleading (consolidated comment on petition for certiorari
**): On January 29, 1996, an ocular inspection of the premises searched was conducted by respondent Judge
and the following facts had been established as contained in the order dated January 30.1996 ** to wit:
1)
That the residence of all the accused is at Apartment No. 1 which is adjacent to the Abigail's Variety
Store;
2)
That there is no such number as "1207" found in the building as it is correspondingly called only as
"Apartment No. 1, 2, 3 and 4;"
3)

That Apartment No. 1 is separate from the Abigail's Variety Store;

4)

That there are no connecting doors that can pass from Abigail's Variety Store to Apartment No. 1;

5)
That Abigail's Variety Store and Apartment No. 1 have its own respective doors used for ingress and
egress.
There being no objection on the said observation of the Court, let the same be reduced on the records.
SO ORDERED.
6.
On February 9, 1996, respondent Judge **issued its order duly granting the motion to quash search
warrant**; 5
7.

On February 12, 1996, private respondents filed the concomitant motion to dismiss** ;

8.
On February 19, 1996, Asst. Provincial Prosecutor Rolando Bulan filed a motion for reconsideration
and supplemental motion on the order quashing the search warrant**;
9.
On February 27, 1996 and March 12, 1996, private respondents filed opposition/comment and
supplemental opposition/comment on the motion for reconsideration** ;
10.
On May 28, 1996, respondent Judge **issued its order denying the motion for reconsideration**; (and
on) June 11, 1996, private respondents filed extremely urgent reiterated motion to dismiss**.
Chiefly to nullify Judge Casanova's quashal Order of February 9, 1996 above referred to, the Solicitor General
forthwith commenced a special civil action of certiorari in the Court of Appeals. The action did not prosper,
however. As earlier mentioned, the Fourteenth Division of the Appellate Tribunal promulgated judgment on
September 11, 1996, dismissing the case for lack of merit.
The judgment was grounded on the following propositions, to wit: 6
1.
The place actually searched was different and distinct from the place described in the search warrant.
This fact was ascertained by the Trial Judge through an ocular inspection, the findings wherein, not objected to
by the People, were embodied in an order dated January 30, 1996. The place searched, in which the accused
(herein petitioners) were then residing, was Apartment No. 1. It is a place other than and separate from, and in
no way connected with, albeit adjacent to, Abigail's Variety Store, the place stated in the search warrant.
2.
The public prosecutor's claim that the sketch submitted to Judge Bacalla relative to the application
for a search warrant, actually depicted the particular place to be searched was effectively confuted by Judge

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Casanova who pointed out that said "SKETCH was not dated, not signed by the person who made it and not
even mentioned in the Search Warrant by the Honorable Judge (Bacalla, who) instead **directed them to
search Abigail Variety Store Apartment 1207** in the Order **dated December 15, 1995" this, too, being the
address given "in the Application for Search Warrant dated December 14, 1995 requested by P/SR INSP.
Roger James Brillantes, the Team Leader." The untenability of the claim is made more patent by the People's
admission, during the hearing of its petition for certiorari in the Court of Appeals, that said sketch was in truth
"not attached to the application for search warrant ** (but) merely attached to the motion for reconsideration." 7
Quoted with approval by the Appellate Court were the following observations of Judge Casanova contained in
his Order of May 28, 1996, viz.: 8
d)
** ** it is very clear that the place searched is different from the place mentioned in the Search Warrant,
that is the reason why even P/SR. INSP Roger James Brillantes, SPO1 Prisco Bella and SPO4 Cesar D.
Santiago, who were all EDUCATED CULTURED and ADEPT to their tasks of being RAIDERS and who were
all STATIONED IN BULACAN were not even able to OPEN THEIR MOUTH to say TAGALOG with Honorable
Judge who issued the Search Warrant the words "KATABI", or "KADIKIT" or "KASUNOD NG ABIGAIL
VARIETY STORE ang papasukin namin" or if they happen to be an ENGLISH speaking POLICEMEN, they
were not able to open their mouth even to WHISPER the ENGLISH WORDS "RESIDE" or "ADJACENT" or
"BEHIND" or "NEXT to ABIGAIL VARIETY STORE, the place they are going to raid."**.
3.
The search was not accomplished in the presence of the lawful occupants of the place (herein private
respondents) or any member of the family, said occupants being handcuffed and immobilized in the living room
at the time. The search was thus done in violation of the law. 9
4.
The articles seized were not brought to the court within 48 hours as required by the warrant itself; "(i)n
fact the return was done after 3 days or 77 hours from service, in violation of Section 11, Rule 126 of the Rules
of Court. 10
5.
Judge Casanova "correctly took cognizance of the motion to quash search warrant, pursuant to the
doctrinal tenets laid down in Nolasco vs. Pao (139 SCRA 152) which overhauled the previous ruling of the
Supreme Court in Templo vs. de la Cruz (60 SCRA 295). It is now the prevailing rule that whenever a search
warrant has been issued by one court or branch thereof and a criminal case is initiated in another court or
branch thereof as a result of the search of the warrant, that search warrant is deemed consolidated with the
criminal case for orderly procedure. The criminal case is more substantial than the search warrant
proceedings, and the presiding Judge in the criminal case has the right to rule on the search warrant and to
exclude evidence unlawfully obtained (Nolasco & Sans cases).
6.
Grave abuse of discretion cannot be imputed to the respondent Judge, in light of "Article III, Section 2
of the Constitution and Rule 126 of the Rules of Court.
7.

The proper remedy against the challenged Order is an appeal, not the special civil action of certiorari.

The Solicitor General now seeks reversal of the foregoing verdict ascribing to the Court of Appeals the
following errors, to wit:
1)
sanctioning "the lower Court's precipitate act of disregarding the proceedings before the issuing Court
and overturning the latter's determination of probable cause and particularity of the place to be searched;"
2)
sanctioning "the lower Court's conclusion that the sketch was not attached to the application for warrant
despite the clear evidence** to the contrary;"
3)

ignoring "the very issues raised in the petition before it;"

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4)
"holding that the validity of an otherwise valid warrant could be diminished by the tardiness by which
the return is made;"
5)
hastily applying "the general rule that certiorari cannot be made a substitute for appeal although the
circumstances attending the case at bar clearly fall within the exceptions to that rule;" and
6)
depriving petitioner of "the opportunity to present evidence to prove the validity of the warrant when the
petition before it was abruptly resolved without informing petitioner thereof."
The whole case actually hinges on the question of whether or not a search warrant was validly issued as
regards the apartment in which private respondents were then actually residing, or more explicitly, whether or
not that particular apartment had been specifically described in the warrant.
The Government insists that the police officers who applied to the Quezon City RTC for the search warrant had
direct, personal knowledge of the place to be searched and the things to be seized. It claims that one of said
officers, in fact, had been able to surreptitiously enter the place to be searched prior to the search: this being
the first of four (4) separate apartments behind the Abigail Variety Store; and they were also the same police
officers who eventually effected the search and seizure. They thus had personal knowledge of the place to be
searched and had the competence to make a sketch thereof; they knew exactly what objects should be taken
therefrom; and they had presented evidence sufficient to establish probable cause. That may be so; but
unfortunately, the place they had in mind the first of four (4) separate apartment units (No. 1) at the rear of
"Abigail Variety Store" was not what the Judge who issued warrant himself had in mind, and was not what
was ultimately described in the search warrant.
The discrepancy appears to have resulted from the officers' own faulty depiction of the premises to be
searched. For in their application and in the affidavit thereto appended, they wrote down a description of the
place to be searched, which is exactly what the Judge reproduced in the search warrant: "premises located at
Abigail Variety Store Apt 1207. Area-F, Bagong Buhay Avenue, Sapang Palay, San Jose Del Monte, Bulacan."
And the scope of the search was made more particular and more restrictive by the Judge's admonition in
the warrant that the search be "limited only to the premises herein described."
Now, at the time of the application for a search warrant, there were at least five (5) distinct places in the area
involved: the store known as "Abigail's Variety Store," and four (4) separate and independent residential
apartment units. These are housed in a single structure and are contiguous to each other although there are
no connecting doors through which a person could pass from the interior of one to any of the others. Each of
the five (5) places is independent of the others, and may be entered only through its individual front door.
Admittedly, the police officers did not intend a search of all five (5) places, but of only one of the residential
units at the rear of Abigail's Variety Store: that immediately next to the store (Number 1).
However, despite having personal and direct knowledge of the physical configuration of the store and the
apartments behind the store, the police officers failed to make Judge Bacalla understand the need to pinpoint
Apartment No. 1 in the warrant. Even after having received the warrant which directs that the search be
"limited only to the premises herein described," "Abigail Variety Store Apt 1207" thus literally excluding the
apartment units at the rear of the store they did not ask the Judge to correct said description. They seem to
have simply assumed that their own definite idea of the place to be searched clearly indicated, according to
them, in the sketch they claim to have submitted to Judge Bacalla in support of their application was
sufficient particularization of the general identification of the place in the search warrant.
The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v. Chief of Staff, AFP, 11
allegedly to the effect that the executing officer's prior knowledge as to the place intended in the warrant is
relevant, and he may, in case of any ambiguity in the warrant as to the place to be searched, look to the
affidavit in the official court file.

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Burgos is inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately
disclosed an obvious typographical error. The application in said case was for seizure of subversive material
allegedly concealed in two places: one at "No. 19, Road 3, Project 6, Quezon City," and the other, at "784
Units C & D. RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued No. 20-82 [a] and No.
20-83 [b]). Objection was made to the execution of Warrant No. 20-82 (b) at "784 Units C & D, RMS Building,
Quezon Avenue, Quezon City" because both search warrants apparently indicated the same address (No. 19,
Road 3, Project 6, Quezon City) as the place where the supposedly subversive material was hidden. This was
error, of course but, as this Court there ruled, the error was obviously typographical, for it was absurd to
suppose that the Judge had issued two warrants for the search of only one place. Adverting to the fact that the
application for the search warrants specified two (2) distinct addresses, and that in fact the address, "784 Units
C & D, RMS Building, Quezon Avenue, Quezon City" appeared in the opening paragraph of Warrant 20-82 (b),
this Court concluded that evidently, this was the address the Judge intended to be searched when he issued
the second warrant (No. 20-82[b]); and to clear up the ambiguity caused by the "obviously typographical error,"
the officer executing the warrant could consult the records in the official court file. 12
The case at bar, however, does not deal with the correction of an "obvious typographical error" involving
ambiguous descriptions of the place to be searched, as in Burgos, but the search of a place different from that
clearly and without ambiguity identified in the search warrant. In Burgos, the inconsistency calling for
clarification was immediately perceptible on the face of the warrants in question. 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 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 is 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 is 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 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.
The Government faults Judge Casanova for having undertaken a review of Judge Bacalla's finding of probable
cause, "as if he were an appellate court." A perusal of the record however shows that all that Judge Casanova
did was merely to point out inconsistencies between Judge Bacalla's Order of December 15, 1995 and the
warrant itself, as regards the identities of the police officers examined by Judge Bacalla. 13 In Judge
Casanova's view, said inconsistencies, being quite apparent in the record, put in doubt the sufficiency of the
determination of the facts on which the search warrant was founded.
The Government alleges that the officers had satisfactorily established probable cause before Judge Bacalla
for the issuance of a search warrant. While this may be conceded, the trouble is, to repeat, that the place
described in the search warrant which, of course, is the only place that may be legitimately searched in
virtue thereof was not that which the police officers who applied for the warrant had in mind, with the result
that what they actually subjected to search-and-seizure operations was a place other than that stated in the
warrant. In fine, while there was a search warrant more or less properly issued as regards Abigail's Variety

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Store, there was none for Apartment No. 1 the first of the four (4) apartment units at the rear of said store,
and precisely the place in which the private respondents were then residing.
It bears stressing that under Section 2, Article III of the Constitution, providing that: 14
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 things to be seized.
it does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personally
determined by the judge after examination under oath, or affirmation of the complainant and the witnesses he
may produce; it is essential, too, that it particularly describe the place to be searched, 15 the manifest intention
being that the search be confined strictly to the place so described.
There was therefore in this case an infringement of the constitutional requirement that a search warrant
particularly describe the place to be searched; and that infringement necessarily brought into operation the
concomitant provision that "(a)ny evidence obtained in violation ** (inter alia of the search-and-seizure
provision) shall be inadmissible for any purpose in any proceeding. 16
In light of what has just been discussed, it is needless to discuss such other points sought to be made by the
Office of the Solicitor General as whether or not (1) the sketch of the building housing the store and the
residential apartment units the place to be searched being plainly marked was in fact attached to the
application for the search warrant; or (2) the search had been conducted in the presence of the occupants of
the place (herein petitioners), among others; or (3) the validity of the search warrant was diminished by the
tardiness by which the return was made, or (4) the Court of Appeals had improperly refused to receive
"evidence which ** (the People) had earlier been denied opportunity to present before the trial court;" or (5) the
remedy of the special civil action of certiorari in the Court of Appeals had been erroneously availed of. The
resolution of these issues would not affect the correctness of the conclusion that the search and seizure
proceedings are void because the place set forth in the search warrant is different from that which the officers
actually searched, or the speciousness of their argument that anyway the premises searched were precisely
what they had described to the Judge, and originally and at all times had in mind.
Only one other matter merits treatment. The Solicitor General's Office opines that where a search warrant has
been "issued by a court other than the one trying the main criminal case," the "proper recourse" of persons
wishing to quash the warrant is to assail it before the issuing court and not before that in which the criminal
case involving the subject of the warrant is afterwards filed. 17 In support, it cites the second of five (5) "policy
guidelines" laid down by this Court in Malaloan v. Court of Appeals 18 concerning "possible conflicts of
jurisdiction (or, more accurately, in the exercise of jurisdiction) where the criminal case is pending in one court
and the search warrant is issued by another court for the seizure of personal property intended to be used as
evidence in said criminal case." Said second guideline reads: 19
2.
When the latter court (referring to the court which does not try the main criminal case) issues the
search warrant, a motion to quash the same may be filed in and shall be resolved by said court, without
prejudice to any proper recourse to the appropriate higher court by the party aggrieved by the resolution of the
issuing court. All grounds and objections then available, existent or known shall be raised in the original or
subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived.
The guidelines have been misconstrued. Where a search warrant is issued by one court and the criminal
action based on the results of the search is afterwards commenced in another court, it is not the rule that a
motion to quash the warrant (or to retrieve things thereunder seized) may be filed only with the issuing Court.
Such a motion may be filed for the first time in either the issuing Court or that in which the criminal action is
pending. However, the remedy is alternative, not cumulative. The Court first taking cognizance of the motion

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does so to the exclusion of the other, and the proceedings thereon are subject to the Omnibus Motion Rule
and the rule against forum-shopping. This is clearly stated in the third policy guideline which indeed is what
properly applies to the case at bar, to wit:
3.
Where no motion to quash the search warrant was filed in or resolved by the issuing court, the
interested party may move in the court where the criminal case is pending for the suppression as evidence of
the personal property seized under the warrant if the same is offered therein for said purpose. Since two
separate courts with different participations are involved in this situation, a motion to quash a search warrant
and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum
shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided, however,
that objections not available, existent or known during the proceedings for the quashal of the warrant may be
raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall
likewise be subject to any proper remedy in the appropriate higher court.
In this case, the search warrant was applied for in, and issued by, Branch 216 of the Regional Trial Court at
Quezon City, and the return was made to said court. On the other hand, the criminal action in connection with
the explosives subject of the warrant was filed in Branch 80 of the Regional Trial Court of Bulacan. In this
situation, a motion to quash the search warrant, or for the return of the personal property seized (not otherwise
contraband) could have properly been presented in the QC RTC. No such motion was ever filed. It was only
after the criminal action had been commenced in the Bulacan RTC that the motion to quash and to suppress
evidence was submitted to the latter. The case thus falls within guideline No. 3 above quoted in accordance
with which the latter court must be deemed to have acted within its competence.
WHEREFORE, the judgment of the Fourteenth Division of the Court of Appeals of September 11, 1996
which dismissed the Peoples petition for certiorari seeking nullification of the Orders of Branch 80 of the
Regional Trial Court dated February 9, 1996 and May 28, 1996 in Criminal Case No. 43-M-96 is, for the
reasons set out in the foregoing opinion, hereby AFFIRMED without pronouncement as to costs.
SO ORDERED.

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POEPL V PURGANAN
EN BANC
G.R. No. 148571

September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA,

Represented by the Philippine Department of Justice, petitioner,
vs.
HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and
MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent
Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.
DECISION
PANGANIBAN, J.:
In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their
arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the
extradition proceedings are pending? In general, the answer to these two novel questions is "No." The
explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.

The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the
Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of Manila, Branch
42. 3 The first assailed Order set for hearing petitioners application for the issuance of a warrant for the arrest
of Respondent Mark B. Jimenez.
The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time
granted bail to Jimenez. The dispositive portion of the Order reads as follows:
WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark
Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into
consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable
amount of bail for respondents temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be
paid in cash.
Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of
Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure
List." 4
Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of
Jimenez into legal custody.
The Facts
This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5
Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through diplomatic
channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by

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Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition
of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the
secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action,
pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law.
Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining
Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of Justice (DOJ) from
filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a
Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the
Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its
supporting papers and to grant the latter a reasonable period within which to file a comment and supporting
evidence. 8
Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution. 9
By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier
Decision. It held that private respondent was bereft of the right to notice and hearing during the evaluation
stage of the extradition process. This Resolution has become final and executory.
Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine
DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as
Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest
warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999. The
warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1)
conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US Code Section
371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US
Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5)
illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US
Code Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his
"immediate arrest" pursuant to Section 6 of PD No. 1069.
Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/ExParte Motion," 10 which prayed that petitioners application for an arrest warrant be set for hearing.
In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on
June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court
allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest.
After the hearing, the court a quo required the parties to submit their respective memoranda. In his
Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post
bail in the amount of P100,000.
The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below
issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at one million pesos in cash. 11 After he had surrendered his passport and posted the
required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12
Hence, this Petition. 13
Issues
Petitioner presents the following issues for the consideration of this Court:
I.

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The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an
arrest warrant under Section 6 of PD No. 1069.
II.
The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty
because:
1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power.
2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail)
of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in
extradition proceedings.
3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.
4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail
is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special
circumstances.
5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no
evidence of special circumstances which may justify release on bail.
6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded
belief that he will not flee.
7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines
with its obligations under the RP-US Extradition Treaty.
8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez
et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila, CA-G.R. SP No. 64589, relied upon by the
public respondent in granting bail, had been recalled before the issuance of the subject bail orders." 14
In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and
hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional
liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of
the Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration in the RTC and to
seek relief in the Court of Appeals (CA), instead of in this Court. 15 We shall also preliminarily discuss five
extradition postulates that will guide us in disposing of the substantive issues.
The Courts Ruling
The Petition is meritorious.
Preliminary Matters
Alleged Prematurity of Present Petition
Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court:
"(1) the issues were fully considered by such court after requiring the parties to submit their respective
memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no
useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the

154
need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to
escape and avoid extradition; and (4) the issues raised are purely of law." 16
For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the
petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and
decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once
and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of
Appeals had in one case 17 ruled on the issue by disallowing bail but the court below refused to recognize the
decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there
are pending issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the
decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential
extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the
Philippines to comply with its obligations under existing extradition treaties." 18
As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has
been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule,
though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved,
or (3) in case of urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for
reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised
are the same as those that have already been squarely argued and exhaustively passed upon by the lower
court. 20 Aside from being of this nature, the issues in the present case also involve pure questions of law that
are of public interest. Hence, a motion for reconsideration may be dispensed with.
Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when
there are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated:
[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if
compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial
policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al.,
Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in
Cuaresma:
x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor, clearly and specifically set out in the petition. This
is established policy. x x x.
Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of
speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which, as
correctly observed by petitioners, has sparked national interest because of the magnitude of the problem
created by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition
first with the Court of Appeals would only result in a waste of time and money.
That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in
our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23
Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice.
Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and
excepted a particular case from their operation whenever the higher interests of justice so require. In the
instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the
parties involved and proceed directly to the merits of the case.
In a number of other exceptional cases, 24 we held as follows:

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This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over
petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort
to us in cases where special and important reasons or exceptional and compelling circumstances justify the
same."
In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we
deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression
over which there is, as yet, no local jurisprudence to guide lower courts.
Five Postulates of Extradition
The substantive issues raised in this case require an interpretation or construction of the treaty and the law on
extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. 25
Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a
signatory, 26 understanding certain postulates of extradition will aid us in properly deciding the issues raised
here.
1. Extradition Is a Major Instrument for the Suppression of Crime.
First, extradition treaties are entered into for the purpose of suppressing crime 27 by facilitating the arrest and
the custodial transfer 28 of a fugitive 29 from one state to the other.
With the advent of easier and faster means of international travel, the flight of affluent criminals from one
country to another for the purpose of committing crime and evading prosecution has become more frequent.
Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend
international boundaries.
Today, "a majority of nations in the world community have come to look upon extradition as the major effective
instrument of international co-operation in the suppression of crime." 30 It is the only regular system that has
been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with
municipal and international law. 31
An important practical effect x x x of the recognition of the principle that criminals should be restored to a
jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be
reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role
in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition
arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in
the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of
extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus
indirectly does the commission of crime itself." 32
In Secretary v. Lantion 33 we explained:
The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate
the extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes
are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal
whose activities threaten the peace and progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational
crimes."
Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international
crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in
order to improve our chances of suppressing crime in our own country.

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2. The Requesting State Will Accord Due Process to the Accused

Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and
trust, each others legal system and judicial process. 34 More pointedly, our duly authorized representatives
signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state
to protect the basic rights of the person sought to be extradited. 35 That signature signifies our full faith that the
accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal
proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been
directly attacked for its unconstitutionality.
3. The Proceedings Are Sui Generis
Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in nature. In
criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in
a class by itself -- they are not.
An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not
involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the
court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x.
xxxxxxxxx
There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less
stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a
prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered
final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the
final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the demands of the nations foreign
relations before making the ultimate decision to extradite."
Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the
innocence of the person sought to be extradited. 37 Such determination during the extradition proceedings will
only result in needless duplication and delay. Extradition is merely a measure of international judicial
assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the
best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that
are the prerogative of that jurisdiction. 38 The ultimate purpose of extradition proceedings in court is only to
determine whether the extradition request complies with the Extradition Treaty, and whether the person sought
is extraditable. 39
4. Compliance Shall Be in Good Faith.
Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative
branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national
interest.
Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On the
other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world

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community. Such failure would discourage other states from entering into treaties with us, particularly an
extradition treaty that hinges on reciprocity. 41
Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. 42
This principle requires that we deliver the accused to the requesting country if the conditions precedent to
extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, when it has
done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the
proper warrant, and the other government is under obligation to make the surrender." 43 Accordingly, the
Philippines must be ready and in a position to deliver the accused, should it be found proper.
5. There Is an Underlying Risk of Flight
Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement
in the experience 44 of the executive branch: nothing short of confinement can ensure that the accused will not
flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state.
The present extradition case further validates the premise that persons sought to be extradited have a
propensity to flee. Indeed,
extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting
country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his
indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting
state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his
aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These
circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the
capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from
fleeing a second time?
First Substantive Issue:
Is Respondent Entitled to Notice and Hearing
Before the Issuance of a Warrant of Arrest?
Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that
an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to
escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous
precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -may invoke it in future extradition cases.
On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his
constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule
setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been
filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge.
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:
SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt
of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear
and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate
arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge
that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon
receipt of the answer, or should the accused after having received the summons fail to answer within the time
fixed, the presiding judge shall hear the case or set another date for the hearing thereof.

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(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each
upon the accused and the attorney having charge of the case." (Emphasis ours)
Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a
warrant of arrest? We rule in the negative.
1. On the Basis of the Extradition Law
It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the
arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the
arrest warrant. Hearing entails sending notices to the opposing parties, 46 receiving facts and arguments 47
from them, 48 and giving them time to prepare and present such facts and arguments. Arrest subsequent to a
hearing can no longer be considered "immediate." The law could not have intended the word as a mere
superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of
whether a warrant of arrest should be issued.
By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such
early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and
actual situation, immediately upon the filing of the petition. From the knowledge and the material then available
to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a
speedy initial determination as regards the arrest and detention of the accused.
Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following:
(1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the
Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G,
evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment,
with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the
Indictment); (3) Annex BB, the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit
of Angela Byers" and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for
Supplemental Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L
"Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed
Statements in two volumes. 49
It is evident that respondent judge could have already gotten an impression from these records adequate for
him to make an initial determination of whether the accused was someone who should immediately be arrested
in order to "best serve the ends of justice." He could have determined whether such facts and circumstances
existed as would lead a reasonably discreet and prudent person to believe that the extradition request was
prima facie meritorious. In point of fact, he actually concluded from these supporting documents that "probable
cause" did exist. In the second questioned Order, he stated:
In the instant petition, the documents sent by the US Government in support of [its] request for extradition of
herein respondent are enough to convince the Court of the existence of probable cause to proceed with the
hearing against the extraditee." 50

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an
arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having
already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon motion of Jimenez. 51
Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the
accused to answer after receiving the summons. In connection with the matter of immediate arrest, however,
the word "hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage
been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition

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proceedings are summary 52 in nature. Hence, the silence of the Law and the Treaty leans to the more
reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire
proceedings.
It is taken for granted that the contracting parties intend something reasonable and something not inconsistent
with generally recognized principles of International Law, nor with previous treaty obligations towards third
States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the
unreasonable, the more reasonable to the less reasonable x x x ." 53
Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their
arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute
an escape. Neither the Treaty nor the Law could have
intended that consequence, for the very purpose of both would have been defeated by the escape of the
accused from the requested state.
2. On the Basis of the Constitution
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a
hearing before the issuance of a warrant of arrest. It provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized."
To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the
examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no
requirement to notify and hear the accused before the issuance of warrants of arrest.
In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of
conducting a hearing just for the purpose of personally determining probable cause for the issuance of a
warrant of arrest. All we required was that the "judge must have sufficient supporting documents upon which to
make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to
the existence of probable cause." 55
In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a hearing
before issuing a warrant of arrest:
Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not
the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial evidence."
At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and
their witnesses. 57 In the present case, validating the act of respondent judge and instituting the practice of
hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire
system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie
determination for the issuance of a warrant of arrest,
what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his
effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case

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into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This
scenario is also anathema to the summary nature of extraditions.
That the case under consideration is an extradition and not a criminal action is not sufficient to justify the
adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a
more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated
predisposition to flee.
Since this is a matter of first impression, we deem it wise to restate the proper procedure:
Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make,
as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show
compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the
judge may
require the submission of further documentation or may personally examine the affiants and witnesses of the
petitioner. If, in spite of this study and examination, no prima facie finding 58 is possible, the petition may be
dismissed at the discretion of the judge.
On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately
issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and
to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or
notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape
and frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in
extradition cases.
Second Substantive Issue:

Is Respondent Entitled to Bail?

Article III, Section 13 of the Constitution, is worded as follows:
Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. Excessive bail shall not be required."
Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons,
including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses
punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the
present case of Section 4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent
with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069.
On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to
bail to a person who is the subject of an extradition request and arrest warrant.
Extradition Different from Ordinary Criminal Proceedings
We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail
quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings,
because extradition courts do not render judgments of conviction or acquittal.

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Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused
who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his
guilt be proved beyond reasonable doubt." 60 It follows that the constitutional provision on bail will not apply to
a case like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is
available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of
habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion." 61 Hence, the second sentence in the constitutional provision on bail merely
emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to
mean that the right is available even in extradition proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an
argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct
from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the
criminal cases against him, not before the extradition court.
No Violation of Due Process
Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall be
deprived of x x x liberty x x x without due process of law."
Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount
to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the
opportunity to be heard 63 but, at the same time, point out that the doctrine does not always call for a prior
opportunity to be heard. 64 Where the circumstances -- such as those present in an extradition case -- call for
it, a subsequent opportunity to be heard is enough. 65 In the present case, respondent will be given full
opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence,
there is no violation of his right to due process and fundamental fairness.
Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his
liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1)
the DOJs filing in court the Petition with its supporting documents after a determination that the extradition
request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent
prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for
his arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the
no-initial-bail rule.
It is also worth noting that before the US government requested the extradition of respondent, proceedings had
already been conducted in that country. But because he left the jurisdiction of the requesting state before those
proceedings could be completed, it was hindered from continuing with the due processes prescribed under its
laws. His invocation of due process now has thus become hollow. He already had that opportunity in the
requesting state; yet, instead of taking it, he ran away.
In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations
in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the
Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had
previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in
cooperating with the world community in the suppression of crime. Indeed, "[c]onstitutional liberties do not exist
in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and
palpable government interests." 66

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Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the
consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk
of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to
be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the
Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting
the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from
coming to the Philippines to hide from or evade their prosecutors.1wphi1.nt
The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 67 of
the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to
cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would
fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the
need for their speedy disposition.
Exceptions to the No Bail Rule
The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to promulgate rules
to protect and enforce constitutional rights. 69 Furthermore, we believe that the right to due process is broad
enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the
"life, liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its
application." 70
Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has
been arrested or placed under the custody of the law, bail may be applied for and granted as an exception,
only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a
danger to the community; and (2) that there exist special, humanitarian and compelling circumstances 71
including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein.
Since this exception has no express or specific statutory basis, and since it is derived essentially from general
principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement
with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive,
not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest
concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial
prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by
caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or
compromised. In short, while this Court is ever protective of "the sporting idea of fair play," it also recognizes
the limits of its own prerogatives and the need to fulfill international obligations.
Along this line, Jimenez contends that there are special circumstances that are compelling enough for the
Court to grant his request for provisional release on bail. We have carefully examined these circumstances and
shall now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000
residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked the
disenfranchisement argument when it ruled thus:
When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of
the limitations on his freedom of action. They did so with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if

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voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at
any time, he may no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This simply
means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities
imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither
partiality nor prejudice shall be displayed.
Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same
class as all persons validly confined under law?
The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly [from] prison. The duties imposed by the mandate of the people are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant
is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to function well in the physical absence of one or a
few of its members. Depending on the exigency of Government that has to be addressed, the President or the
Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends
on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of
nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective
governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the
call of a particular duty lifted a prisoner into a different classification from those others who are validly
restrained by law.
A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in
favor of or against groups or types of individuals.
The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise
of government authority to regulate even if thereby certain groups may plausibly assert that their interests are
disregarded.
We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to all those belonging to the same class." 73
It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was
already of public knowledge that the United States was requesting his extradition. Hence, his constituents were
or should have been prepared for the consequences of the extradition case against their representative,
including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos,
we are constrained to rule against his claim that his election to public office is by itself a compelling reason to
grant him bail.
2. Anticipated Delay
Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair
to confine him during the pendency of the case. Again we are not convinced. We must emphasize that
extradition cases are summary in nature. They are resorted to merely to determine whether the extradition
petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as
a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal
action.

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We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is
quite another matter that is not at issue here. Thus, any further discussion of this point would be merely
anticipatory and academic.
However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail
not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would
be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and
unreasonably delay the extradition proceedings even more. This we cannot allow.
3. Not a Flight Risk?
Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the
extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the
preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee
as the process moves forward to its conclusion, as he hears the footsteps of the requesting government
inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will
stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution
of the Petition for Extradition.
In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the
applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the
present case, the extradition court may continue hearing evidence on the application for bail, which may be
granted in accordance with the guidelines in this Decision.
Brief Refutation of Dissents
The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a copout. The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both
by the trial court and this Court to discuss fully and exhaustively private respondents claim to bail. As already
stated, the RTC set for hearing not only petitioners application for an arrest warrant, but also private
respondents prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then
position papers on the application for bail, both of which were separately filed by the parties.
This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the
Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not
normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been
submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional
pleadings -- entitled "Manifestations" by both parties and "Counter-Manifestation" by private respondent -- in
which the main topic was Mr. Jimenezs plea for bail.
A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would
again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and
verbal propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is
absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr.
Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion
and strength in his legal reasoning.
In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions
written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all
relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay
these already very delayed proceedings, 74 which our Extradition Law requires to be summary in character.
What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is
a firm decision on the merits, not a circuitous cop-out.

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Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one
of extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its
length and breath, this Decision has taken special cognizance of the rights to due process and fundamental
fairness of potential extraditees.
Summation
As we draw to a close, it is now time to summarize and stress these ten points:
1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the
petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition,
complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings
are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally
escaped -- back to its territory, so that the criminal process may proceed therein.
2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or
soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of
the latter to grant basic rights to the accused in the pending criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is
determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are
necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of the
accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the
requesting state, the reasonable prima facie presumption is that the person would escape again if given the
opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a
prima facie finding whether the petition is sufficient in form and substance, whether it complies with the
Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to
require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If
convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and to appear at scheduled hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of
absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community;
and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court
in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a
special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the
context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does
not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk
involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard
and to enjoy fundamental fairness that is compatible with the summary nature of extradition.
7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and
the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect
for the prerogatives of the other co-equal and co-independent organs of government.
8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of
government has broad discretion in its duty and power of implementation.

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9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or
excise grave abuse and tyranny. They should not allow contortions, delays and "over-due process" every little
step of the way, lest these summary extradition proceedings become not only inutile but also sources of
international embarrassment due to our inability to comply in good faith with a treaty partners simple request to
return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and
escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral
justice and international cooperation.
10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance
with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic
contortions, delays and technicalities that may negate that purpose.
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared
NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to
Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial
Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant
to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law. No
costs.

SO ORDERED.

167

MALACAT V CA
EN BANC
G.R. No. 123595

December 12, 1997

SAMMY MALACAT y MANDAR, petitioner,

vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.:

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court
(RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of
Presidential Decree No. 1866, 2 as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the
necessary license and/or permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the
prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at
the time they arrested petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the
arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the
grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police
Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb
threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform)
along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon
two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides
of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with
"[t]heir eyes. . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and observed both groups for about thirty
minutes. The police officers then approached one group of men, who then fled in different directions. As the
policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a
fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio
Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan
were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and
thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims
was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the
previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to
detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his
companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and
Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990.
Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his

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companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from
petitioner. 9
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan
were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two
suspects, informing them of their rights to remain silent and to be assisted by competent and independent
counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even
without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there
being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio
prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the
grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for
examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in
evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things,
the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March
1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an
orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the
preliminary examination of the grenade, he "[f]ound that [the] major components consisting of [a] high filler and
fuse assembly [were] all present," and concluded that the grenade was "[l]ive and capable of exploding." On
even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August
1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at
the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza
Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand
aside. The policemen searched petitioner and two other men, but found nothing in their possession. However,
he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having
shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner
"[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said,
"[y]ou are the one who shot me." Petitioner denied the charges and explained that he only recently arrived in
Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was
once again searched, but nothing was found on him. He saw the grenade only in court when it was presented.
14
The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where
a "warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is
either to maintain the status quo momentarily while the police officer seeks to obtain more information." 15
Probable cause was not required as it was not certain that a crime had been committed, however, the situation
called for an investigation, hence to require probable cause would have been "premature." 16 The RTC
emphasized that Yu and his companions were "[c]onfronted with an emergency, in which the delay necessary
to obtain a warrant, threatens the destruction of evidence" 17 and the officers "[h]ad to act in haste," as
petitioner and his companions were acting suspiciously, considering the time, place and "reported cases of
bombing." Further, petitioner's group suddenly ran away in different directions as they saw the arresting
officers approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which is not
necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of
violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and
since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the
Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond
reasonable doubt.

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In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found
petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, and sentenced
him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF
RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court.
However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No.
15988 and issued a notice to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1.
THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF
ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN
APPROPRIATE INCIDENT TO HIS ARREST."
2.
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT
THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE
AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions
provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. 23 As such, the search
was illegal, and the hand grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its
decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner
abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and
second, the factual finding of the trial court that the grenade was seized from petitioner's possession was not
raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand
grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was
lawful on the ground that there was probable cause for the arrest as petitioner was "attempting to commit an
offense," thus:
We are at a loss to understand how a man, who was in possession of a live grenade and in the company of
other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political
tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit
an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site
especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an
offense, Malacat's posture is simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution
witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased
petitioner two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions
acted suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable man that an
offense was about to be committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to
mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several
innocent persons while maiming numerous others, before arriving at what would then be an assured but moot

170
conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in
saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but
rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal
technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner relied upon,
was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy
street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public
clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence
reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted
foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the
police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or
is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat
in Plaza Miranda two days before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:
1.
THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT
THE WARRANTIES ARREST OF PETITIONER WAS VALID AND LEGAL.
2.
THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE
DOES NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless
arrest and search, then disagrees with the finding of the Court of Appeals that he was "attempting to commit a
crime," as the evidence for the prosecution merely disclosed that he was "standing at the corner of Plaza
Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at every person that come (sic)
nearer (sic) to them." Finally, petitioner points out the factual similarities between his case and that of People v.
Mengote to demonstrate that the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision..
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the
trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is
reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom
should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization
Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article
VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment"
as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to
include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.

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Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the
trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and
consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for
the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish
petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from
petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to
him, he turned it over to his commander after putting an "X" mark at its bottom; however, the commander was
not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by
police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not
immediately after petitioner's arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was
no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his
testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated
from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did
not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement
authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to
detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then
considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police
officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to
the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to
petitioner in order to discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by
police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of
Section 12(1) and (3) of Article III of the Constitution, which provide as follows:
Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot
be waived except in writing and in the presence of counsel.
xxx

xxx

xxx

(3)
Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present
and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus,
even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the
waiver was invalid as it was not in writing, neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were
invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect
the same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to

172
those effected without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless
arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
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 . . .

A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one
"in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of
moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a
lawful arrest; 34 and (6) a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of
the grenade from the accused [as an appropriate incident to his arrest," hence necessitating a brief discussion
on the nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental
to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof
before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search,
the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely
used as a pretext for conducting a search. 36 In this instance, the law requires that there first be a lawful arrest
before a search can be made the process cannot be reversed. 37 At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and the area within which the latter may reach for a
weapon or for evidence to destroy, and seize any money or property found which was used in the commission
of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the
arrestee with the means of escaping or committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of
the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of
petitioner, indicating that a crime had just been committed, was being committed or was going to be
committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on
petitioner could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search
of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies
himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of

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himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under
the Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," 40 it
nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must
exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person
detained has weapons concealed about him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the
general interest of effective crime prevention and detection, which underlies the recognition that a police officer
may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of
safety and self-preservation which permit the police officer to take steps to assure himself that the person with
whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the
police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to
bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor
corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility
as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search
petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his
companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares
otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately
collared."
Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere
suspicion other than that his eyes were "moving very fast" an observation which leaves us incredulous since
Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk.
Petitioner and his companions were merely standing at the corner and were not creating any commotion or
trouble, as Yu explicitly declared on cross-examination:
Q

And what were they doing?

They were merely standing.

You are sure of that?

Yes, sir.

And when you saw them standing, there were nothing or they did not create any commotion.

None, sir.

Neither did you see them create commotion?

None, sir. 42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly
weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front
waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge,
assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by
the trial court:

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When the policemen approached the accused and his companions, they were not yet aware that a
handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in
Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR
No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt,
the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and
petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from
detention, unless his further detention is justified for any other lawful cause.
Costs de oficio.
SO ORDERED.

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PEOPLE V DORIA
EN BANC

G.R. No. 125299

January 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO DORIA y BOLADO and VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants.

PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @
"Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of
1972. 1 The information reads:
That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping
and aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and
feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of suspected marijuana
fruiting tops weighing 7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW. 2
The prosecution contends the offense was committed as follows: In November 1995, members of the North
Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received information
from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong City.
The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's,
a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in
Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning,
Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team Alpha composed of
P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four (4) other
policemen as members. P/Insp. Cortes designated P03 Manlangit as the poseur-buyer and SPO1 Badua as
his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the North
Metropolitan District PNP Narcom, gave the team P2, 000. 00 to cover operational expenses. From this sum,
PO3 Manlangit set aside P1,600.00 a one thousand peso bill and six (6) one hundred peso bills 3 as
money for the buy-bust operation. The market price of one kilo of marijuana was then P1,600.00. P03
Manlangit marked the bills with his initials and listed their serial numbers in the police blotter. 4 The team rode
in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one
(1) kilo of marijuana. P03 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed P03
Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street while he got the marijuana from
his associate. 5 An hour later, "Jun" appeared at the agreed place where P03 Manlangit, the CI and the rest of
the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to P03 Manlangit.
P03 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did
not find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at the house of his
associate named "Neneth. 6 "Jun" led the police team to "Neneth's" house nearby at Daang Bakal.

176
The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as his
associate. 7 SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's"
house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of
the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its
contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3
Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it
contained ten (10) bricks of what appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." 8 The
policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the
marked bills and turned them over to the investigator at headquarters. It was only then that the police learned
that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried
marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were
examined at the PNP Crime Laboratory. 9 The bricks, eleven (11) in all, were found to be dried marijuana
fruiting tops of various weights totalling 7,641.08 grams. 10
The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria,
a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his
house reading a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There
were many "Totoys" in their area and as the men questioning him were strangers, accused-appellant denied
knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a pusher in
their community. When accused-appellant denied the charge, the men led him to their car outside and ordered
him to point out the house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he
gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as P03
Manlangit, pushed open the door and he and his companions entered and looked around the house for about
three minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the house
and they saw Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but she replied
he was not there. Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta entered
her house, three men were already inside. Accused-appellant Doria, then still at the door, overheard one of the
men say that they found a carton box. Turning towards them, Doria saw box on top of the table. The box was
open and had something inside. P03 Manlangit ordered him and Violeta to go outside the house and board the
car. They were brought to police headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance,
Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood store. This
closeness, however, did not extend to Violeta, Totoy's wife. 11
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at
her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely,
Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day, accusedappellant woke up at 5:30 in the morning and bought pan de sal for her children's breakfast. Her husband,
Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed them. Her
eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson, and
accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she and
Jayson remained standing in front of the school soaking in the sun for about thirty minutes. Then they headed
for home. Along the way, they passed the artesian well to fetch water. She was pumping water when a man
clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her and
took her to her house. She found out later that the man was P03 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top
of the table. This was the first time she saw the box. The box was closed and tied with a piece of green straw.

177
The men opened the box and showed her its contents. She said she did not know anything about the box and
its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband,
and that her husband never returned to their house after he left for Pangasinan. She denied the charge against
her and Doria and the allegation that marked bills were found in her person. 12
After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial court
found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants to death
and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows:
WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both
CONVICTED of the present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of
Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty
imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to
ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659
which explicitly state that:
The maximum penalty shall be imposed if the offense was committed by any person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating, confederating or
mutually helping one another for purposes of gain in the commission of any crime.
the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun"
and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand
Pesos (P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for
destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the
New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional
Institute for Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review.
SO ORDERED. 13
Before this Court, accused-appellant Doria assigns two errors, thus:
I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES
FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,
INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM
APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II

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THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS
FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH
AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE. 14
Accused-appellant Violeta Gaddao contends:
I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE
POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST WAS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE
INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH
DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE
AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER, WHICH
IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME,
NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH LEADING
TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSEDAPPELLANT. 15
The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension
of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the
search of her person and house, and the admissibility of the pieces of evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form of
entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the
commission of an offense. 16 Entrapment has received judicial sanction when undertaken with due regard to
constitutional and legal safeguards. 17
Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine that
evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly
liquor and narcotics offenses. 18 Entrapment sprouted from the doctrine of estoppel and the public interest in
the formulation and application of decent standards in the enforcement of criminal law. 19 It also took off from
a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons
into lapses that they might otherwise resist. 20
In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood
as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a
criminal prosecution against him. 21 The classic definition of entrapment is that articulated by Justice Roberts
in Sorrells v. United States, 22 the first Supreme Court decision to acknowledge the concept: "Entrapment is
the conception and planning of an offense by an officer, and his procurement of its commission by one who
would not have perpetrated it except for the trickery, percuasion or fraud of the officers." 23 It consists of two
(2) elements: (a) acts of percuasion, trickery, or fraud carried out by law enforcement officers or the agents to
induce a defendant to commit a crime; and (b) the origin of the criminal design in the minds of the government

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officials rather than that of the innocent defendant, such that the crime is the product of the creative activity of
the law enforcement officer. 24
It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons
violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law forbids is
the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a criminal
career. 25 Where the criminal intent originates criminal in the mind of the entrapping person and the accused is
lured into the commission of the offense charged in order to prosecute him, there is entrapment and no
conviction may be had. 26 Where, however, the criminal intent originates in the mind of the accused and the
criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished
the accused an opportunity for commission of the offense, or that the accused is aided in the commission of
the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused
must be convicted. 27 The law tolerates the use of decoys and other artifices to catch a criminal.
Entrapment is recognized as a valid defense 28 that can be raised by an accused and partakes of the nature of
a confession and avoidance. 29 It is a positive defense. Initially, an accused has the burden of providing
sufficient evidence that the government induced him to commit the offense. Once established, the burden
shifts to the governmet to show otherwise. 30 When entrapment is raised as a defense, American federal
courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United
States 31 to determine whether entrapment actually occurred. The focus of the inquiry is on the accused's
predisposition to commit the offense charged, his state of mind and inclination before his initial exposure to
government agents. 32 All relevant facts such as the accused's mental and character traits, his past offenses,
activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state of
mind before the crime. 33 The predisposition test emphasizes the accused's propensity to commit the offense
rather than the officer's misconduct 34 and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal." 35 If the accused was found to have been ready and willing to
commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used an
unduly persuasive inducement. 36 Some states, however, have adopted the "objective" test. 37 This test was
first authoritatively laid down in the case of Grossman v. State 38 rendered by the Supreme Court of Alaska.
Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the
court considers the nature of the police activity involved and the propriety of police conduct. 39 The inquiry is
focused on the inducements used by government agents, on police conduct, not on the accused and his
predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct. 40 The test
of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding
person, other than one who is ready and willing, to commit the offense; 41 for purposes of this test, it is
presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented
by the simple opportunity to act unlawfully. 42 Official conduct that merely offers such an opportunity is
permissible, but overbearing conduct, such as badgering, cajoling or importuning, 43 or appeals to sentiments
such as pity, sympathy, friendship or pleas of desperate illness, are not. 44 Proponents of this test believe that
courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but
rather because, even if his guilt has been established, the methods employed on behalf of the government to
bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should
not become tainted by condoning law enforcement improprieties. 45 Hence, the transactions leading up to the
offense, the interaction between the accused and law enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would on a normal person. 46
Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the
"subjective" test creates an "anything goes" rule, i.e, if the court determines that an accused was predisposed
to commit the crime charged, no level of police deceit, badgering or other unsavory practices will be deemed
impermissible. 47 Delving into the accused's character and predisposition obscures the more important task of
judging police behavior and prejudices the accused more generally. It ignores the possibility that no matter
what his past crimes and general disposition were, the accused might not have committed the particular crime
unless confronted with inordinate inducements. 48 On the other extreme, the purely "objective" test eliminates

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entirely the need for considering a particular accused's predisposition. His predisposition, at least if known by
the police, may have an important bearing upon the question of whether the conduct of the police and and their
agents was proper. 49 The undisputed fact that the accused was a dangerous and chronic offender or that he
was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to irrelevancy. 50
Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States
now combine both the "subjective" and "objective" 51 In Cruz v. State, 52 the Florida Supreme Court declared
that the permissibility of police conduct must first be determined. If this objective test is satisfied, then the
analysis turns to whether the accused was predisposed to commit the crime. 53 In Baca v. State, 54 the New
Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal defendant may
successfully assert a defense of entrapment, either by showing lack of predisposition to commit the crime for
which he is charged, or, that the police exceeded the standards of proper investigation. 55 The hybrid
approaches combine and apply the "objective" and "subjective" tests alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused
caught in flagrante delicto. In United States v. Phelps, 56 we acquitted the accused from the offense of
smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit
the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he
overheard Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was
disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to
convince him to look for an opium den where both of them could smoke this drug. 57 The conduct of the BIR
agent was condemned as "most reprehensible." 58 In People v. Abella, 59 we acquitted the accused of the
crime of selling explosives after examining the testimony of the apprehending police officer who pretended to
be a merchant. The police officer offered "a tempting price, . . . a very high one" causing the accused to sell the
explosives. We found that there was inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the accused. 60 In People v. Lua Chu and
Uy Se Tieng, 61 we convicted the accused after finding that there was no inducement on the part of the law
enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of
opium from Hongkong to Cebu after the accused had already planned its importation and ordered said drug.
We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him
by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of
the prohibited drug and the arrest of the surreptitious importers. 62
It was also in the same case of People v. Lua Chu and Uy Se Tieng 63 we first laid down the distinction
between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris, 64 we held:
ENTRAPMENT AND INSTIGATION. While it has been said that the practice of entrapping persons into
crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the
act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that
facilities for its commission were purposely placed in his way, or that the criminal act was done at the 'decoy
solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act were
present and apparently assisting in its commission. Especially is this true in that class of cases where the
offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of
conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free
from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed
confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was
formed independently of such agent; and where a person approached by the thief as his confederate notifies
the owner or the public authorities, and, being authorised by them to do so, assists the thief in carrying out the
plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for an
illegal sale of liquor that the purchase was made by a "spotter," detective, or hired informer; but there are
cases holding the contrary. 65

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The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia,
66 the appellate court declared that "there is a wide difference between entrapment and instigation." The
instigator practically induces the would-be accused into the commission of the offense and himself becomes a
co-principal. In entrapment, ways and means are resorted to by the peace officer for the purpose of trapping
and capturing the lawbreaker in the execution of his criminal plan. 67 In People v. Tan Tiong, 68 the Court of
Appeals further declared that "entrapment is no bar to the prosecution and conviction of the lawbreaker. 69
The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu
Ua. 70 Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed contrary to
public policy and illegal. 71
It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or
inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the
accused. It is instigation that is a defense and is considered an absolutory cause. 72 To determine whether
there is a entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers,
not the predisposition of the accused to commit the crime. The "objective" test first applied in United States v.
Phelps has been followed in a series of similar cases. 73 Nevertheless, adopting the "objective" approach has
not precluded us from likewise applying the "subjective" test. In People v. Boholst, 74 we applied both tests by
examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's
membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's
previous his convictions of other crimes 75 and held that his opprobrious past and membership with the
dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the accused did
not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc 76
thereby sustaining his defense that led to his acquittal.
The distinction between entrapment and instigation has proven to be very material in anti-narcotics operations.
In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust
operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws, like antigambling laws are regulatory statutes. 77 They are rules of convenience designed to secure a more orderly
regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. 78 They are not the
traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with crimes mala in
se or those inherently wrongful and immoral. 79 Laws defining crimes mala prohibita condemn behavior
directed, not against particular individuals, but against public order. 80 Violation is deemed a wrong against
society as a whole and is generally unattended with any particular harm to a definite person. 81 These
offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It
is rare for any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to
assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing
violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of
its own officials. This means that the police must be present at the time the offenses are committed either in an
undercover capacity or through informants, spies or stool pigeons. 82
Though considered essential by the police in enforcing vice legislation, the confidential informant system
breeds abominable abuse. Frequently, a person who accepts payment from the police in the apprehension of
drug peddlers and gamblers also accept payment from these persons who deceive the police. The informant
himself maybe a drug addict, pickpocket, pimp, or other petty criminal. For whatever noble purpose it serves,
the spectacle that government is secretly mated with the underworld and uses underworld characters to help
maintain law and order is not an inspiring one. 83 Equally odious is the bitter reality of dealing with
unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous law enforcers'
motivations are legion harassment, extortion, vengeance, blackmail, or a desire to report an
accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of cases
84 where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and
hapless persons, particularly unsuspecting provincial hicks. 85 The use of shady underworld characters as
informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and
ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to

182
be extra-vigilant in deciding drug cases. 86 Criminal activity is such that stealth and strategy, although
necessary weapons in the arsenal of the police officer, become as objectionable police methods as the
coerced confession and the unlawful search. As well put by the Supreme Court of California in People v.
Barraza, 87
[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest,
illegal detention and the third degree, it is a type of lawless enforcement. They all spring from common
motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister
sophism that the end, when dealing with known criminals of the 'criminal class,' justifies the employment of
illegal means. 88
It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law
enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should
not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the individual.
89 It is the duty of courts to preserve the purity of their own temple from the prostitution of the criminal law
through lawless enforcement. 90 Courts should not allow themselves to be used as an instrument of abuse
and injustice lest an innocent person be made to suffer the unusually severe penalties for drug offenses. 91
We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported
transaction must be clearly and adequately shown. This must start from the initial contact between the poseurbuyer and the pusher, the offer to purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject of the sale. 92 The manner by which the
initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of
the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer,
must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to
commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the
conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime.
If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must
also be considered. Courts should look at all factors to determine the predisposition of an accused to commit
an offense in so far as they are relevant to determine the validity of the defense of inducement.1wphi1.nt
In the case at bar, the evidence shows that it was the confidential informant who initially contacted accusedappellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed
as the buyer of marijuana. P03 Manlangit handed the marked money to accused-appellant Doria as advance
payment for one (1) kilo of marijuana. Accused-appellant Doria was apprehended when he later returned and
handed the brick of marijuana to P03 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his credibility was
not crumpled on cross-examination by defense counsel. Moreover, P03 Manlangit's testimony was
corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the
confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of
the need to hide their identity and preserve their invaluable service to the police. 93 It is well-settled that except
when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the
testimonies of the arresting officers, 94 or there are reasons to believe that the arresting officers had motives to
testify falsely against the appellant, 95 or that only the informant was the poseur-buyer who actually witnessed
the entire transaction, 96 the testimony of the informant may be dispensed with as it will merely be
corroborative of the apprehending officers' eyewitness testimonies. 97 There is no need to present the
informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses. 98
The inconsistencies in P03 Manlangit's and SPO1 Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source
of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution
proved that money was paid to accused-appellant Doria in consideration of which he sold and delivered the
marijuana.

183

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was
actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the Narcom
agents placed this one (1) brick of marijuana recovered from appellant Doria inside the carton box lumping it
together with the ten (10) bricks inside. This is why the carton box contained eleven (11) bricks of marijuana
when brought before the trial court. The one (1) brick recovered from appellant Doria and each of the ten (10)
bricks, however, were identified and marked in court. Thus:
ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that box?
A
This is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana
brick we confiscated from the suspect, sir.
Q

Please open it and show those eleven bricks.

PROSECUTOR

Witness bringing out from the said box. . .

ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven
items when the question posed to the witness was what was handed to him by Jun?
COURT

So be it.

ATTY. ARIAS May we make it of record that the witness is pulling out them after item from the box showed to
him and brought in front of him.
COURT

Noted.

Now tell the court, how did you know that those are the eleven bricks?

xxx

xxx

I have markings on these eleven bricks, sir.

Point to the court, where are those markings?

Here, sir, my signature, my initials with the date, sir.

xxx

PROSECUTOR
Q

Witness showed a white wrapper and pointing to CLM and the signature.

Whose signature is that?

ATTY. VALDEZ
Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what
was handed to him by the accused Jun, your Honor?
PROSECUTOR
reconsideration.
COURT

Your Honor, there is already a ruling by this Honorable Court, your Honor, despite

Let the prosecution do its own thing and leave the appreciation of what it has done to the court.

ATTY. VALDEZ

We submit, your Honor.

184

This brick is the one that was handed to me by the suspect Jun, sir.

COURT

Why do you know that that is the thing? Are you sure that is not "tikoy?"

Yes, your Honor.

What makes you so sure?

A
I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought it to
the PCCL, your Honor.
Q

What are you sure of?

I am sure that this is the brick that was given to me by one alias Jun, sir.

What makes you so sure?

A
Because I marked it with my own initials before giving it to the investigator and before we brought it to
the PCCL, your Honor.
xxx

xxx

xxx

PROSECUTOR
Exhibit "D?"
COURT

May we request that a tag be placed on this white plastic bag and this be marked as

Mark it as Exhibit "D."

Q
To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this
plastic?
A

This one, the signature, I made the signature, the date and the time and this Exhibit "A."

How about this one?

I don't know who made this marking, sir.

PROSECUTOR

May it be of record that this was just entered this morning.

I am asking you about this "itim" and not the "asul."

This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir.

PROSECUTOR

May we place on record that the one that was enclosed. . .

ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95 also
Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that there are other
entries included in the enclosure.
COURT

Noted. The court saw it.

Q
Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with a piece
of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"

185
COURT

Tag it. Mark it.

This particular exhibit that you identified, the wrapper and the contents was given to you by whom?

It was given to me by suspect Jun, sir.

Whereat?

At the corner of Boulevard and Jacinto St., sir.

How about the other items that you were able to recover?

xxx

xxx

xxx

A
These other marijuana bricks, because during our follow-up, because according to Jun the money
which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir.
xxx

xxx

xxx 99

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the
corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were
marked as Exhibits "D," "D-l," and "D-2" and described as weighing nine hundred seventy (970) grams. 100
We also reject appellant's submission that the fact that P03 Manlangit and his team waited for almost one hour
for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant
cannot capitalize on the circumstance that the money and the marijuana in the case at bar did not change
hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-bust" operations
there must be a simultaneous exchange of the marked money and the prohibited drug between the poseurbuyer and the pusher. 101 Again, the decisive fact is that the poseur-buyer received the marijuana from the
accused-appellant. 102
We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are
allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to
wit:
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 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.
xxx

xxx

xxx 103

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is
actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of
committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust
operation, the police are not only authorized but duty-bound to arrest him even without a warrant. 104

186

The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the
box of marijuana and marked bills are different matters.
Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without
such warrant is inadmissible for any purpose in any proceeding. 105 The rule is, however, not absolute.
Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in
the following instances: 106 (1) search incident to a lawful arrest;107 (2) search of a moving motor vehicle; 108
(3) search in violation of customs laws; 109 (4) seizure of evidence in plain view; 110 (5) when the accused
himself waives his right against unreasonable searches and seizures. 111
The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and
seizure of the box of marijuana and the marked bills were likewise made without a search warrant. It is
claimed, however, that the warrants were not necessary because the arrest was made in "hot pursuit" and the
search was an incident to her lawful arrest.
To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances
enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct
testimony of PO3 Manlangit, the arresting officer, however shows otherwise:
ATTY. VALDEZ, Counsel for appellant Gaddao:
We submit at this juncture, your Honor, that there will be no basis for that question.
Q

This particular exhibit that you identified, the wrapper and the contents was given to you by whom?

It was given to me by suspect Jun, sir.

Whereat?

At the corner of Boulevard and Jacinto Street, sir.

How about, the other items that you were able to recover?

ATTY. VALDEZ:
COURT

We submit at this juncture, your Honor, that there will be no basis for that question.

There is. Answer.

A
These other marijuana bricks, because during our follow-up, because according to Jun the money
which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir.
Q

Whereat?

At Daang Bakal near the crime scene at Shaw Boulevard, sir.

And what happened upon arrival thereat?

We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir.

You mentioned "him?"

Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir.

And what happened?

187

At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir.

xxx

xxx

xxx 112

SPO1 Badua testified on cross-examination that:

Q

What was your intention in going to the house of Aling Neneth?

To arrest her, sir.

But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was there?

Yes, sir.

As far as you can see, she was just inside her house?

I saw her outside, sir.

She was fetching water as a matter of fact?

She was 'sa bandang poso.'

Carrying a baby?

No, sir.

Q
At that particular time when you reached the house of Aling Neneth and saw her outside the house, she
was not committing any crime, she was just outside the house?
A

No, sir.

Q
She was not about to commit any crime because she was just outside the house doing her daily
chores. Am I correct?
A

I just saw her outside, sir.

And at that point in time you already wanted to arrest her. That is correct, is it not?

Yes, sir.

Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her?

PO3 Manlangit, sir.

You did not approach her because P03 Manlangit approached her?

Yes, sir.

Q
During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you
were just in the side lines?
A

I was just watching, sir.

188
Q
So you were just an on-looker to what Manlangit was doing, because precisely according to you your
role in this buy-bust operation was as a back-up?
A

Yes, sir.

Who got the alleged marijuana from inside the house of Mrs. Neneth?

P03 Manlangit, sir.

Manlangit got the marijuana?

Yes, sir.

And the money from Aling Neneth?

I don't know, sir.

You did not even know who got the money from Aling Neneth?

PROSECUTOR:
There is no basis for this question, your Honor. Money, there 's no testimony on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q
Alright. I will ask you a question and I expect an honest answer. According to the records, the amount
of P1,600.00 was recovered from the person of Aling Neneth. That's right?
A

Yes, sir, the buy-bust money.

Q
What you are now saying for certain and for the record is the fact that you were not the one who
retrieved the money from Aling Neneth, it was Manlangit maybe?
A

I saw it, sir.

It was Manlangit who got the money from Aling Neneth?

The buy-bust money was recovered from the house of Aling Neneth, sir.

Q
It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are
trying to tell the Court?
A

No, sir.

189
ATTY. VALDEZ:
I am through with this witness, your Honor. 113
Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her
arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial
court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot
pursuit." 114 In fact, she was going about her daily chores when the policemen pounced on her.
Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal
knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable
cause" which means an "actual belief or reasonable grounds of suspicion." 115 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 an actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 116 A
reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the
peace officers making the arrest. 117
Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her coaccused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his coaccused in response to his (PO3 Manlangit's) query as to where the marked money was. 118 Appellant Doria
did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left
the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao
conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, 119
with or without her knowledge, with or without any conspiracy. Save for accused-appellant Doria 's word, the
Narcom agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no
showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts
implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable. 120
Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person
and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an
incident to her arrest. This brings us to the question of whether the trial court correctly found that the box of
marijuana was in plain view, making its warrantless seizure valid.
Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to
seizure even without a search warrant and maybe introduced in evidence. 121 The "plain view" doctrine
applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a
prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery
of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband or otherwise subject to seizure. 122 The law enforcement
officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the
area. 123 In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating
the accused. 124 The object must be open to eye and
hand 125 and its discovery inadvertent. 126
It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when
the object is inside a closed container. Where the object seized was inside a closed package, the object itself
is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer,
then the contents are in plain view and may be seized. 127 In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the prohibited article, then the article is
deemed in plain view. 128 It must be immediately apparent to the police that the items that they observe may
be evidence of a crime, contraband or otherwise subject to seizure. 129

190
PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:
ATTY. VALDEZ:
So here we are. When you and Badua arrived, Aling Neneth was inside the house?
A

Yes, sir.

Badua demanded from Aling Neneth the buy-bust money?

Yes, sir.

At that particular instance, you saw the carton?

Yes, sir.

This carton, according to you was under a table?

Yes, sir, dining table.

I noticed that this carton has a cover?

Yes, sir.

I ask you were the flaps of the cover raised or closed?

It was open, sir. Not like that.

COURT
Go down there. Show to the court.
INTERPRETER
Witness went down the witness stand and approached a carton box.
A

Like this, sir.

PROSECUTOR
Can we describe it?
ATTY. VALDEZ
Yes.
PROSECUTOR
One flap is inside and the other flap is standing and with the contents visible.
COURT
Noted.

191
Q

At this juncture, you went inside the house?

Yes, sir.

And got hold of this carton?

Yes, sir.

Did you mention anything to Aling Neneth?

I asked her, what's this. . .

No, no. no. did you mention anything to Aling Neneth before getting the carton?

A
I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo
galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir.
Q

Making reference to the marijuana that was given by alias Jun?

Yes, sir.

When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]?

I just don't know if she was frisked already by Badua, sir.

Who got hold of this?

I was the one, sir.

You were the one who got this?

Yes, sir.

Q
At that particular point in time, you did not know if the alleged buy-bust money was already retrieved by
Badua?
A

Yes, sir.

You went inside the house?

Yes, sir.

You did not have any search warrant?

Yes, sir.

Q
In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in
possession of the buy-bust money because according to you, you did not know whether Badua already
retrieved the buy-bust money from her?
A

Yes, sir.

How far was this from the door?

192
A

Two and a half meters from the door, sir. It was in plain view.

Under the table according to you?

Yes, sir, dining table.

Somewhere here?

It's far, sir.

PROSECUTOR
May we request the witness to place it, where he saw it?
A

Here, sir.

What you see is a carton?

Yes, sir, with plastic.

Marked "Snow Time Ice Pop?

Yes, sir.

With a piece of plastic visible on top of the carton?

Yes, sir.

That is all that you saw?

Yes, sir.

PROSECUTOR
For the record, your Honor. . .
Q

You were only able to verify according to you . . .

PRESECUTOR
Panero, wait. Because I am objecting to the words a piece of plastic. By reading it . . .
ATTY. VALDEZ
That's a piece of plastic.
PROSECUTOR
By reading it, it will connote . . . this is not a piece of plastic.
ATTY. VALDEZ
What is that? What can you say, Fiscal? I'm asking you?

193
PROSECUTOR
With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small
one, for record purposes.
COURT
Leave that to the court.
PROSECUTOR
Leave that to the court.
Q
The only reason according to you, you were able to . . . Look at this, no even Superman . . . I withdraw
that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the Court, it could be
"tikoy," is it not [sic]?
A

Yes, sir.

Siopao?

Yes, sir.

Canned goods?

Yes, sir.

It could be ice cream because it says Snow Pop, Ice Pop?

I presumed it was also marijuana because it may . . .

I am not asking you what your presumptions are. I'm asking you what it could possibly be.

It's the same plastic, sir.

ATTY. VALDEZ
I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do
that for you.
COURT
Continue. Next question.
xxx

xxx

xxx 130

P03 Manlangit and the police team were at appellant Gaddao's house because they were led there by
appellant Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant
Doria name her and led them to her. 131 Standing by the door of appellant Gaddao's house, P03 Manlangit
had a view of the interior of said house. Two and a half meters away was the dining table and underneath it
was a carton box. The box was partially open and revealed something wrapped in plastic.
In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana
because he himself checked and marked the said contents. 132 On cross-examination, however, he admitted

194
that he merely presumed the contents to be marijuana because it had the same plastic wrapping as the "buybust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and
transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box
was individually wrapped in old newspaper and placed inside plastic bags white, pink or blue in color. 133
PO3 Manlangit himself admitted on cross-examination that the contents of the box could be items other than
marijuana. He did not know exactly what the box contained that he had to ask appellant Gaddao about its
contents. 134 It was not immediately apparent to PO3 Manlangit that the content of the box was marijuana.
The marijuana was not in plain view and its seizure without the requisite search warrant was in violation of the
law and the Constitution. 135 It was fruit of the poisonous tree and should have been excluded and never
considered by the trial court. 136
The fact that the box containing about six (6) kilos of marijuana 137 was found in the house of accusedappellant Gaddao does not justify a finding that she herself is guilty of the crime charged. 138 Apropos is our
ruling in People v. Aminnudin, 139 viz:
The Court strongly supports the campaign of the government against drug addiction and commends the efforts
of our law enforcement officers against those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of
the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of
criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any
manner of high-handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the
name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less
evil that some criminals should escape than that the government should play an ignoble part.' It is simply not
allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution
itself. 140
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic
Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a prohibited drug"
with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million, to wit:
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of
reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such
transactions.
xxx

xxx

xxx

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the
sale took place between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the
corpus delicti, as evidence in court. 141 The prosecution has clearly established the fact that in consideration
of P1,600.00 which he received, accused-appellant Doria sold and delivered nine hundred seventy (970)
grams of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that
accused-appellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being no
mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be imposed. 142
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special
Court in Criminal Case No. 3307-D is reversed and modified as follows:
1.
Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua
and to pay a fine of five hundred thousand pesos (P500,000.00).

195
2.

Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.

196

MANALILI X CA
THIRD DIVISION
G.R. No. 113447

October 9, 1997

ALAIN MANALILI y DIZON, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably
there is no time to secure an arrest or a search warrant, policemen should employ limited, flexible responses
like "stop-and-frisk" which are graduated in relation to the amount of information they possess, the
lawmen being ever vigilant to respect and not to violate or to treat cavalierly the citizen's constitutional rights
against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of Court,
seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated
January 20, 1994 in CA G.R. CR No. 07266, entitled "People of the Philippines vs. Alain Manalili y Dizon."
In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan
City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly
committed as follows: 2
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused without any authority of law, did then and there wilfully, unlawfully
and feloniously have in his custody, possession and control crushed marijuana residue, which is a prohibited
drug and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge. 3 With the agreement of
the public prosecutor, appellant was released after filing a P10,000.00 bail bond. 4 After trial in due course, the
Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19,
1989 a decision 5 convicting appellant of illegal possession of marijuana residue. The dispositive portion of the
decision reads: 6
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON guilty
beyond reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal
Possession of Marijuana residue), and hereby sentences (sic) said accused to suffer imprisonment of SIX (6)
YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.
xxx

xxx

xxx

Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for the defense, filed a Notice of
Appeal 8 dated May 31, 1989. On April 19, 1993, Respondent Court 9 promulgated its assailed Decision,
denying the appeal and affirming the trial court: 10

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ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costs
against appellant.
Respondent Court 11 denied reconsideration via its assailed Resolution dated January 20, 1994, disposing:
ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby DENIED.
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows: 12
At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the Kalookan
City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the
Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver
named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the Police Station of
Kalookan City. The surveillance was being made because of information that drug addicts were roaming the
area in front of the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced
upon a male person in front of the cemetery who appeared high on drugs. The male person was observed to
have reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the
policemen, the latter approached him and introduced themselves as police officers. The policemen then asked
the male person what he was holding in his hands. The male person tried to resist. Pat Romeo Espiritu asked
the male person if he could see what said male person had in his hands. The latter showed the wallet and
allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found
suspected crushed marijuana residue inside. He kept the wallet and its marijuana contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and
was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl.
Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be the
accused ALAIN MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped the
same with a white sheet of paper on which he wrote "Evidence "A" 4/11/88 Alain Manalili". The white sheet of
paper was marked as Exhibit "E-3". The residue was originally wrapped in a smaller sheet of folded paper.
(Exhibit "E-4").
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a
chemical analysis of the subject marijuana residue (Exhibit "D"). Cpl. Tamondong thereafter prepared a Joint
Affidavit of the apprehending policemen (Exhibit "A"). Pat. Angel Lumabas handcarried the referral slip (Exhibit
"D") to the National Bureau of Investigation (NBI), including the subject marijuana residue for chemical
analysis. The signature of Pat. Lumabas appears on the left bottom corner of Exhibit "D".
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana
residue at 7:40 o'clock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit "D".
It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which
she identified. (Exhibit
"E") 13 Mrs. Pascual referred to the subject specimen as "crushed marijuana leaves" in her Certification dated
April 11, 1988 (Exhibit "F"). 14 These crushed marijuana leaves gave positive results for marijuana, according
to the Certificate.

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Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also
found that the "crushed marijuana leaves" gave positive results for marijuana. She then prepared a Final
Report of her examinations (Exhibit "G").
After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed it.
(Exhibit "E"). She then wrote identification notes on this letter-envelope. (Exhibit "E-1").
Pat. Lumabas carried the Certification marked as Exhibit "F" from the NBI Forensic Chemistry Section to Cpl.
Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of
Kalookan City. (Exhibit "C")
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the
cemetery when he was apprehended. 15
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows: 16
At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle at
A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered
the driver of the tricycle to stop because the tricycle driver and his lone passenger were under the influence of
marijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera which the
policemen were riding in. The policemen then bodily searched the accused and the tricycle driver. At this point,
the accused asked the policemen why he was being searched and the policemen replied that he (accused)
was carrying marijuana. However, nothing was found on the persons of the accused and the driver. The
policemen allowed the tricycle driver to go while they brought the accused to the police headquarters at
Kalookan City where they said they would again search the accused.
On the way to the police headquarters, the accused saw a neighbor and signalled the latter to follow him. The
neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the
accused was asked to remove his pants in the presence of said neighbor and another companion. The
policemen turned over the pants of the accused over a piece of bond paper trying to look for marijuana.
However, nothing was found, except for some dirt and dust. This prompted the companion of the neighbor of
the accused to tell the policemen to release the accused. The accused was led to a cell. The policemen later
told the accused that they found marijuana inside the pockets of his pants.
At about 5:00 o'clock in the afternoon on the same day, the accused was brought outside the cell and was led
to the Ford Fiera. The accused was told by the policemen to call his parents in order to "settle" the case. The
policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat.
Lumabas was the policeman who told the accused to call his parents. The accused did not call his parents and
he told the policemen that his parents did not have any telephone.
At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the office of an inquest
Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the
accused not to say anything. The accused was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were
stopped by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found
nothing either on his person or on the person of the accused when both were searched on April 11, 1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police
Headquarters on April 11, 1988. He said that the police searched the accused who was made to take off his
pants at the police headquarters but no marijuana was found on the body of the accused.

199
Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that
tricycles were allowed to ply in front of the Caloocan Cemetery. 17
The Rulings of the Trail and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the
arresting officers' testimony. Patrolmen Espiritu and Lumabas were "neutral and disinterested" witnesses,
testifying only on what transpired during the performance of their duties. Substantially they asserted that the
appellant was found to be in possession of a substance which was later identified as crushed marijuana
residue.
The trial court disbelieved appellant's defense that this charge was merely "trumped up," because the
appellant neither took any legal action against the allegedly erring policemen nor moved for a reinvestigation
before the city fiscal of Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations,
surmises or conjectures. On the alleged "serious" discrepancies in the testimonies of the arresting officers, the
appellate court ruled that the said inconsistencies were insubstantial to impair the essential veracity of the
narration. It further found petitioner's contention that he could not be convicted of illegal possession of
marijuana residue to be without merit, because the forensic chemist reported that what she examined were
marijuana leaves.
Issues
Petitioner assigns the following errors on the part of Respondent Court:
I
The Court of Appeals erred in upholding the findings of fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling that the guilt of the
accused had been proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of the prosecution
witnesses were material and substantial and not minor.
IV
The Court of Appeals erred in not appreciating the evidence that the accused was framed for the purpose of
extorting money.
V
The Court of Appeals erred in not acquitting the accused when the evidence presented is consistent with both
innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in evidence.

200
Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the
credibility of prosecution witnesses and the rejection by the trial and the appellate courts of the defense of
extortion, and (3) the sufficiency of the prosecution evidence to sustain his conviction.
The Court's Ruling
The petition has no merit.
First Issue:
Admissibility of the Evidence Seized
During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were
products of an illegal search. The Solicitor General, in his Comment dated July 5, 1994, which was adopted as
memorandum for respondent, counters that the inadmissibility of the marijuana leaves was waived because
petitioner never raised this issue in the proceedings below nor did he object to their admissibility in evidence.
He adds that, even assuming arguendo that there was no waiver, the search was legal because it was
incidental to a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark
case of Terry vs. Ohio, 18 a stop-and-frisk was defined as the vernacular designation of the right of a police
officer to stop a citizen on the street, interrogate him, and pat him for weapon(s):
. . . (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he identified himself as a policeman
and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and
any weapon seized may properly be introduced in evidence against the person from whom they were taken. 19
In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention
and detection allows a police officer to approach a person, in appropriate circumstances and manner, for
purposes of investigating possible criminal behavior even though there is insufficient probable cause to make
an actual arrest. This was the legitimate investigative function which Officer McFadden discharged in that case,
when he approached petitioner and his companion whom he observed to have hovered alternately about a
street corner for an extended period of time, while not waiting for anyone; paused to stare in the same store
window roughly 24 times; and conferred with a third person. It would have been sloppy police work for an
officer of 30 years' experience to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what
justified the limited search was the more immediate interest of the police officer in taking steps to assure
himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and
fatally be used against him.
It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously
secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. 20
Section 2, Article III of the 1987 Constitution, gives this guarantee:
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

201
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.
Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a "fruit of
the poisonous tree," falling under the exclusionary rule:
Sec. 3. . . .
(2)
Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in
any proceeding.
This right, however, is not absolute. 21 The recent case of People vs. Lacerna enumerated five recognized
exceptions to the rule against warrantless search and seizure, viz.: "(1) search incidental to a lawful arrest, (2)
search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure." 22 In People vs. Encinada, 23 the Court
further explained that "[i]n these cases, the search and seizure may be made only with probable cause as the
essential requirement. Although the term eludes exact definition, probable cause for a search is, at best,
defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to
warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged;
or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection
with said offense or subject to seizure and destruction by law is in the place to be searched."
Stop-and-frisk has already been adopted as another exception to the general rule against a search without a
warrant. In Posadas vs. Court of Appeals, 24 the Court held that there were many instances where a search
and seizure could be effected without necessarily being preceded by an arrest, one of which was stop-andfrisk. In said case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a
buri bag and acting suspiciously. They found inside petitioner's bag one .38-cal. revolver with two rounds of
live ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of the
search, the Court said that to require the police officers to search the bag only after they had obtained a search
warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was
reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to
maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a
crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant
had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police
information was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics
Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were "high."
The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs.
During such investigation, they found marijuana in petitioner's possession: 25
FISCAL RALAR:
Q
City?

And why were you conducting surveillance in front of the Caloocan Cemetery, Sangandaan, Caloocan

A
Because there were some informations that some drug dependents were roaming around at A. Mabini
Street in front of the Caloocan Cemetery, Caloocan City.
xxx

xxx

xxx

202
Q
While you were conducting your surveillance, together with Pat. Angel Lumabas and one Arnold
Enriquez, what happened, if any?
A
We chanced upon one male person there in front of the Caloocan Cemetery then when we called his
attention, he tried to avoid us, then prompting us to approach him and introduce ourselves as police officers in
a polite manner.
xxx

xxx

xxx

Could you describe to us the appearance of that person when you chanced upon him?

That person seems like he is high on drug.

How were you able to say Mr. Witness that that person that you chanced upon was high on drug?

Because his eyes were red and he was walking on a swaying manner.

What was he doing in particular when you chanced upon him?

He was roaming around, sir.

You said that he avoided you, what did you do when he avoided you?

We approached him and introduced ourselves as police officers in a polite manner, sir.

How did you introduce yourselves?

In a polite manner, sir.

What did you say when you introduced yourselves?

We asked him what he was holding in his hands, sir.

And what was the reaction of the person when you asked him what he was holding in his hands?

He tried to resist, sir.

When he tried to resist, what did you do?

I requested him if I can see what was he was (sic) holding in his hands.

What was the answer of the person upon your request?

He allowed me to examine that something in his hands, sir.

xxx

xxx

What was he holding?

He was holding his wallet and when we opened it, there was a marijuana (sic) crushed residue.

xxx

Furthermore, we concur with the Solicitor General's contention that petitioner effectively waived the
inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto during
the trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable search,

203
requires the concurrence of the following requirements: (1) the right to be waived existed; (2) the person
waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish
the right. 26 Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental
safeguards and will not deduce acquiescence from the failure to exercise this elementary right. In the present
case, however, petitioner is deemed to have waived such right for his failure to raise its violation before the trial
court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole
case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised
below cannot be pleaded for the first time on appeal. 27
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers' testimony contained "polluted, irreconcilable and
unexplained" contradictions which did not support petitioner's conviction.
We disagree. Time and again, this Court has ruled that the trial court's assessment of the credibility of
witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and
respect, since it had the opportunity to observe their demeanor and deportment as they testified before it.
Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court which, if
considered, would materially affect the result of the case, we will not countenance a departure from this rule.
28
We concur with Respondent Court's ruling:
(e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution
witnesses' testimonies, We do not find them substantial enough to impair the essential veracity of their
narration. In People vs. Avila, it was held that "As long as the witnesses concur on the material points, slight
differences in their remembrance of the details, do not reflect on the essential veracity of their statements.
However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full
credence on Pat. Espiritu's testimony is justified by tangible evidence on record. Despite Pat. Lumabas'
contradictory testimony, that of Espiritu is supported by the Joint Affidavit 29 signed by both arresting
policemen. The question of whether the marijuana was found inside petitioner's wallet or inside a plastic bag is
immaterial, considering that petitioner did not deny possession of said substance. Failure to present the wallet
in evidence did not negate that marijuana was found in petitioner's possession. This shows that such
contradiction is minor and does not destroy Espiritu's credibility. 30
Third Issue:

Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object
which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused
freely and consciously possessed the said drug. 31
The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida Pascual to be
crushed marijuana leaves. Petitioner's lack of authority to possess these leaves was established. His
awareness thereof was undeniable, considering that petitioner was high on drugs when stopped by the
policemen and that he resisted when asked to show and identify the thing he was holding. Such behavior
clearly shows that petitioner knew that he was holding marijuana and that it was prohibited by law.
Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the
extortion angle in this case. Petitioner did not file any administrative or criminal case against the arresting
officers or present any evidence other than his bare claim. His argument that he feared for his life was lame
and unbelievable, considering that he was released on bail and continued to be on bail as early as April 26,
1988. 32 Since then, he could have made the charge in relative safety, as he was no longer in the custody of

204
the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to
concoct and fabricate. 33
The Proper Penalty
The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by
sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed
fine of six thousand pesos. This Act requires the imposition of an indeterminate penalty:
Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to
an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225.)
Sec. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or lifeimprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or
espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have
escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the
Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not
exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except
as provided in Section 5 hereof. (Emphasis supplied)
The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal
possession of marijuana:
Sec. 8. . . . .
The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six
thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall
possess or use Indian hemp.
Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of
imprisonment ranging from six years and one day to twelve years. 34
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner
is sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as
maximum, and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.

205

PEOPLE V USANA
FIRST DIVISION
[G.R. Nos. 129756-58. January 28, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN DEEN ESCAO, VIRGILIO TOME USANA and
JERRY CASABAAN LOPEZ, accused.
VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused-appellants.
DECISION
DAVIDE, JR., C.J.:
Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before
the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4,
Article II of Republic Act No. 6425,[1] as amended. Escao and Usana were also charged in Criminal Case No.
95-937 and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree
No. 1866.
The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows:
That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all
of them mutually helping and aiding one another, without being authorized by law, did then and there willfully,
unlawfully and feloniously sell, distribute and transport 3.3143 kilograms of "HASHISH", a prohibited drug, in
violation of the above-cited law.[2]
The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows:
That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and
feloniously have in his possession, direct custody and control one (1) pc. of cal. .45 pistol, government model
with Serial No. 990255, with magazine containing 7 live ammos and two (2) more magazines for cal. .45 pistol
containing 7 live ammos each, without first securing the necessary license or permit from the proper
government authorities and which firearm and ammunitions he carried outside of his residence.[3]
The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads:
That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession, direct custody and control One (1) pc. of rifle carbine with Serial No.
7176644 with a banana type magazine loaded with 28 live ammunitions without first securing the necessary
license or permit from the proper government authorities and which firearms and ammunitions he carried
outside of his residence.[4] Es-mso
The cases were consolidated and jointly tried.
In its Decision of 30 May 1997,[5] which was promulgated on 17 June 1997, the trial court convicted Escao
and herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana
in Criminal Case No. 95-938.
Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal
of Appeal,[6] which was granted by the trial court in its Order of 17 July 1997.[7]

206

Usana and Lopez filed a Notice of Appeal on 30 June 1997,[8] manifesting therein that they were appealing to
this Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No.
95-936 was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal
Case No. 95-938. In its Order of 30 June 1997,[9] the trial court gave due course to the appeal and ordered the
transmittal of the record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938
to the Court of Appeals.
Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court.
Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players
in this case.
The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban,
some law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de
los Santos, and Inspector Ernesto Guico,[10] were manning a checkpoint at the corner of Senator Gil Puyat
Ave. and the South Luzon Expressway (SLEX).[11] They were checking the cars going to Pasay City, stopping
those they found suspicious, and imposing merely a running stop on the others. At about past midnight, they
stopped a Kia Pride car with Plate No. TBH 493.[12] PO3 Suba saw a long firearm on the lap of the person
seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as
Escao, to open the door. PO3 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao,
upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were search for more
weapons. Their search yielded a .45 caliber firearm which they seized from Escao.[13]
The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3
Nonato.[14] Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los
Santos was suspicious of the vehicle, he requested Escao to open the trunk.[15] Escao readily agreed and
opened the trunk himself using his key.[16] They noticed a blue bag inside it,[17] which they asked Escao to
open. The bag contained a parcel wrapped in tape,[18] which, upon examination by National Bureau of
Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143
kilograms.[19] lex
A certification was issued by the Firearms and Explosive Office of the National Police Commission
(NAPOLCOM) to the effect that Escao was not a licensed/registered firearms holder of any kind and caliber.
Usana, however, according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber
with license issued on 14 October 1994 and to expire on April 1996. Usana also has an application for a pistol
Uzi Cal. 9mm. Neither of the two guns seized were licensed/registered with the NAPOLCOM.[20]
For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning,
he was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners,
including Usana and Lopez. He saw his friend and erstwhile co-employee at Philippine Airlines, Ramon
Cabrera, who had borrowed his wifes car. Since it was his wifes birthday the following day, he asked Cabrera
if he could get back the car. Cabrera readily gave him the keys of the car.[21]
He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wifes car, they cruised
southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They
stopped before crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see
a group of policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed
down and stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He
asked if he had committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The
policemen persisted in asking for his license, but he did not budge and instead reiterated that there was no
reason for him to surrender his license for he had not committed any violation. A verbal tussle ensued resulting
in the drawing of firearms by the policemen which prompted Usana to suggest that they go to the police station
because the policemen were carrying guns and they have not done anything wrong.[22] Jjj uris

207

He stated further that he was the one who drove to the police station along Dian St. with his companions. He
parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco.[23] The
policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they
needed to conduct a search when they had not even told him what he had violated. Apparently, he thought
they were there only for verification purposes. Lt. Eco explained that that was the reason why they were going
to search his car, to see if he had done anything illegal. Although the police were insistent in asking for the
keys to his car, he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell.[24]
After two hours, he was brought back to Lt. Ecos office. Lt. Eco pointed to a bag, a rifle, a pistol and a package
wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal
possession of firearms and transporting of drugs. He was surprised that they found those items from his car
because his key had been with him all the time. He was handcuffed, brought to his car, and again was
surprised to see its trunk open.[25]
On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in
the same subdivision.[26] On 4 April 1995, he was working on Usanas pick-up truck at the latters house when
Escao dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes
Park.[27] At around 5:30 p.m., they left Usanas house in Escaos metallic gray Kia Pride. Inside the car, he
saw a .45 caliber pistol and two spare magazines tucked in the right side and left side of Escaos waist. He
also saw a carbine under the right passenger seat. When he inquired about the guns, Escao replied that such
did not pose any problem since they were licensed. Before going to Usana, they went to Pasay City to see a
certain Jerry.[28] They met Usana at the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his
seat to Usana but was unaware if the latter noticed the rifle beneath the seat.[29] Lexj uris
They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The
policemen directed their flashlights at them and one opened the front passenger door.[30] The latter saw the
rifle under Usanas seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw
the gun tucked in Escaos waist and asked if he was a policeman. Escao replied that everything would be
explained at the police station. He was also asked to step out. No firearm was, however, found in his
possession.[31]
When confronted about the guns, Escao tried to intercede for his two companions and said that "... these two
dont know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A
certain Toto, a policeman, drove the Kia Pride to Block 5.[32]
Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana
were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk
to him. He told him that all he knew about Escao is that he was a wealthy flight attendant with military
connections. After returning to Lt. Ecos office, PO3 de los Santos went out of the police station with Lt. Eco
and Escao. The three came back with a blue bag which he had never seen before. The bag was opened
before the three suspects. Escao reiterated that his two companions had nothing to do with the bag.[33]
He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00
p.m., they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he
owned the bag/case.[34]
For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de
Asis and Taytay Management Corporation.[35] He admitted owning a licensed .45 caliber pistol.[36] In March
1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on
the other hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an
international flight attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also
supplied materials to the Philippine Army and planned to engage in a construction business.[37]

208
On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype
gunship helicopters they were supposed to supply. They talked on the phone, agreeing to meet between 8:30
and 9:00 p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit,[38] and met at around a quarter past
nine. Escao was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for
him. They went to Magallanes Village to meet a certain Norman Garcia and talk about the documents[39]
relating to the helicopter gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with
Garcia, he noticed a gun and magazines tucked in Escaos waist. Upon inquiry, Escao said it was not a
problem and only for his protection.[40] On their way to Roxas Boulevard, they were stopped at a checkpoint
along Sen. Gil Puyat Ave. Policemen knocked on the car windows so he and Escao rolled down their
windows. A person in civilian clothes suddenly opened the right door, took something from the side of his seat
and shouted, "Theres a gun." He was surprised because he did not carry anything when he boarded the car;
neither did he see anything inside the car because it was dark and he was not wearing his eyeglasses.[41] The
person who took the gun asked if he was a policeman, and he said he was an architect. He was then asked to
alight from the car, then frisked. Escao was also asked to alight from a car. They saw a gun tucked in his
waist, so they asked if he was a policeman, and Escao answered in the negative. Lopez was then ordered to
get out of the car by the person in civilian clothes and was also searched. They rode the Anfra service vehicle
of the police. One of the policemen asked Lopez to handcuff him and Escao. The policeman who asked
Escao to get out of the car drove the Anfra van to Block 5 where they arrived at 1:30 in the morning of 5
April.[42] J lexj
He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco
came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with
Escao and that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the
office of Lt. Eco and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato,
Suba and Erwin Eco, the person in civilian clothes. All six went out to the parking area and returned after about
five minutes. Lt. Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked
about the contents of the bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag
before them. They all saw something in brown paper. He and Lopez simultaneously exclaimed that they knew
nothing about the contents of the bag, and they implored Escao to tell the police that they had nothing to do
with it.[43]
The trial court found the prosecutions version more credible than that of any one of the accused, and ruled
that the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed:
WHEREFORE, in view of the foregoing judgment is hereby rendered as follows:
1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME and JERRY
LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer imprisonment of RECLUSION
PERPETUA, and to pay a fine of P500,000.00.
The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314 kilograms of
Hashish (marijuana) for its appropriate disposition in accordance with law; and
2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and VIRGILIO USANA y
TOME are GUILTY as charged in the two separate informations respectively filed against them and are
sentenced to suffer the indeterminate prison term from TEN (10) YEARS of PRISION MAYOR maximum, as
minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of RECLUSION TEMPORAL
maximum as maximum.[44] Court
The firearms and ammunitions subject matter of these cases which are still with the City Prosecutors Office
are forfeited in favor of the Government are directed to be turned over to the Firearms and Explosive Unit,
PNP, Camp Crame, Quezon City for its appropriate disposition.
SO ORDERED. [45]

209

Accused-appellants Usana and Lopez anchor their appeal on the following arguments:
1. The trial court erred in admitting in evidence the hashish seized without search warrant when the police
officers already had the opportunity to secure a search warrant before searching the bag found at the baggage
compartment at the back of the car;
2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants to have
conspired with Escao in transporting the hashish when the evidence clearly shows that the hashish was
owned and possessed solely by Escao;
3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact that they were
neither in actual nor constructive possession of the illegal drug; and
4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of appellants.
Before going any further, some words are in order regarding the establishment of checkpoints.
Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that
the checkpoint manned by elements of the Makati Police should have been announced. They also complain of
its having been conducted in an arbitrary and discriminatory manner.
We take judicial notice of the existence of the COMELEC resolution[46] imposing a gun ban during the election
period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas
Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the
month. The incident, which happened on 5 April 1995, was well within the election period. Supreme
This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public
order and are conducted in a way least intrusive to motorists are allowed.[47] For, admittedly, routine
checkpoints do intrude, to a certain extent, on motorists right to "free passage without interruption," but it
cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles
occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said
routine checks cannot be regarded as violative of an individuals right against unreasonable search. In fact,
these routine checks, when conducted in a fixed area, are even less intrusive.[48]
The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The
COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of
pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a
gun during said period would know that they only need a car to be able to easily perpetrate their malicious
designs.
The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against
illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious,
such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At
best they would merely direct their flashlights inside the cars they would stop, without opening the cars doors
or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the
situation demands.
We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be
impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of
checkpoints may still be inferred from their fixed location and the regularized manner in which they are
operated.[49]

210
Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for
violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the
car. Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search
incidental to an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5)
consented warrantless search;[50] and (6) stop-and-frisk situations.[51]
Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the
vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both
Lopez and Usana testified that Escao was with the police officers when they searched the car.[52] There was
no apparent objection made by Escao as he seemed to have freely accompanied the police officers to the
car. PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of
SPO4 de los Santos.[53] But according to Escao, he refused the request of the police officers to search his
car.[54] We must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of
Usana and Lopez that Escao freely accompanied the police officers to the car, it is also deemed admitted by
Escao in failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against
him. Esmsc
Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No.
6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao;
(2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for
firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4)
the cars trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5)
after arrival at the police station and until the opening of the cars trunk, the car was in the possession and
control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk
of the car. Their having been with Escao in the latters car before the "finding" of the hashish sometime after
the lapse of an appreciable time and without their presence left much to be desired to implicate them to the
offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and
Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized.
IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court,
Makati, Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-appellants
VIRGILIO T. USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No
6425, as amended, is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING
them therein on ground of reasonable doubt and ORDERING their immediate release from confinement at the
New Bilibid Prison, unless their further detention is justified for any lawful ground. The Director of the Bureau of
Corrections is hereby directed to report to the Court the release of said accused-appellants within five (5) days
from notice of this decision.
SO ORDERED.

211

JAO V CA
EN BANC
G.R. No. 104604

October 6, 1995

NARCISO O. JAO and BERNARDO M. EMPEYNADO, petitioners,

vs.
COURT OF APPEALS; COMMISSIONER OF CUSTOMS; COLLECTOR OF CUSTOMS, Port of Manila; Col.
SINDULFO R. SEBASTIAN, Director, Enforcement and Security Services, Bureau of Customs; and Maj.
JAIME MAGLIPON, Chief, Operations and Intelligence Staff, Enforcement and Security Services, Bureau of
Customs, respondents.
G.R. No. 111223

October 6, 1995

NARCISO O. JAO and BERNARDO M. EMPEYNADO, petitioners,

vs.
THE HONORABLE OMBUDSMAN CONRADO M. VASQUEZ, and SINDULFO SEBASTIAN, JAIME
MAGLIPON; JOSE YUCHONGCO; RICARDO CORONADO; VICTOR BARROS; DENNIS BANTIGUE; ROY
LARA; BENJAMIN SANTOS; RODOLFO GONDA; ADONIS REJOSO; DANIEL PENAS; NICANOR BONES;
ABUNDIO JUMAMOY; ARTEMIO CASTILLO; ANDRESITO ABAYON; RUBEN TAGUBA; JAIME JAVIER;
HERBERT DOLLANO, all with the Bureau of Customs; JOVY GUTIERREZ of the Makati police, and 'JOHN
DOES', respondents.

ROMERO, J.:
G.R. No. 104604 is a petition for certiorari of the decision 1 of the Court of Appeals, the dispositive portion of
which states:
WHEREFORE, the petition is hereby GRANTED. The orders issued by the respondent judge dated November
20, 1990, December 10, 1990, January 3, 1991 and all subsequent orders in the Civil Case No. 90-2382 of the
Regional Trial Court of Makati are SET ASIDE. Having no jurisdiction over the case, the respondent judge is
hereby enjoined from proceeding with Civil Case No. 90-2382 and further, Case No. 90-2382 is hereby
DISMISSED.
SO ORDERED.
G.R. No. 111223 is a petition for certiorari of the resolution of the Ombudsman 2 dismissing the case filed
before it by herein petitioner.
The above-docketed cases were consolidated per resolution of the Court on August 26, 1993, as the facts in
both cases were the same.
These facts are the following:
On August 10, 1990, the Office of the Director, Enforcement and Security Services (ESS), Bureau of Customs,
received information regarding the presence of allegedly untaxed vehicles and parts in the premises owned by
a certain Pat Hao located along Quirino Avenue, Paranaque and Honduras St., Makati. After conducting a
surveillance of the two places, respondent Major Jaime Maglipon, Chief of Operations and Intelligence of the
ESS, recommended the issuance of warrants of seizure and detention against the articles stored in the
premises.

212
On August 13, 1990, District Collector of Customs Titus Villanueva issued the warrants of seizure and
detention.
On the same date, respondent Maglipon coordinated with the local police substations to assist them in the
execution of the respective warrants of seizure and detention. Thereafter, the team searched the two premises.
In Makati, they were barred from entering the place, but some members of the team were able to force
themselves inside. They were able to inspect the premises and noted that some articles were present which
were not included in the list contained in the warrant.. Hence, on August 15, 1990, amended warrants of
seizure and detention were issued by Villanueva.
On August 25, 1990, customs personnel started hauling the articles pursuant to the amended warrants. This
prompted petitioners Narciso Jao and Bernardo Empeynado to file a case for Injunction and Damages,
docketed as Civil Case No. 90-2382 with prayer for Restraining Order and Preliminary Injunction before the
Regional Trial Court of Makati Branch 56 on August 27, 1990 against respondents. On the same date, the trial
court issued a Temporary Restraining Order.
On September 7, 1990, respondents filed a Motion to Dismiss on the ground that the Regional Trial Court has
no jurisdiction over the subject matter of the complaint, claiming that it was the Bureau of Customs that had
exclusive jurisdiction over it.
On November 20, 1990, the trial court denied respondents' motion to dismiss.
On November 29, 1990, petitioners' application for preliminary prohibitory and mandatory injunction was
granted conditioned upon the filing of a one million peso bond.
The Court also prohibited respondents from seizing, detaining, transporting and selling at public auction
petitioners' vehicles, spare parts, accessories and other properties located at No. 2663 Honduras St., San
Isidro, Makati and at No. 240 Quirino Avenue, Tambo, Paranaque, Metro Manila. Respondents were further
prohibited from disturbing petitioners' constitutional and proprietary rights over their properties located at the
aforesaid premises. Lastly, respondents were ordered to return the seized items and to render an accounting
and inventory thereof.
On December 13, 1990, respondents filed a motion for reconsideration based on the following grounds:
a)
the lower court having no jurisdiction over the subject matter of the complaint, it has no recourse but to
dismiss the same; and
(b)

the lower court had no legal authority to issue an injunction therein.

On January 3, 1991 the motion for reconsideration was denied. Respondents then went to the Court of
Appeals on the ground that the judge acted with grave abuse of discretion in denying their motion to dismiss
and in granting petitioners' application for preliminary injunction. They argued that the Regional Trial Court had
no jurisdiction over seizure and forfeiture proceedings, such jurisdiction being exclusively vested in the Bureau
of Customs.
The Court of Appeals set aside the questioned orders of the trial court and enjoined it from further proceeding
with Civil Case No. 90-2382. The appellate court also dismissed the said civil case.
On May 2, 1992, petitioners filed a petition with this Court to review the decision of the Court of Appeals
docketed as G.R. No. 104604.
As regards G.R. No. 111223, petitioners filed criminal charges against respondents, other officers and
employees of the Bureau of Customs and members of the Makati Police before the Office of the Ombudsman

213
for Robbery, Violation of Domicile and Violation of Republic Act No. 3019, docketed as OMB Case No. 0-902027.
Respondent Ombudsman summarized the case before it as follows:
This is an affidavit-complaint filed by the complainants against the respondents, Officers and Employees of the
Bureau of Customs and members of the Makati Police allegedly for violation of Domicile and Robbery defined
and penalized under Articles 128, 293 and 294 of the Revised Penal Code and for violation of R.A. 3019
committed as follows, to wit:
That on August 11, 1990, after receiving intelligence information of the presence of smuggled goods, some of
the respondents headed by Jaime Maglipon posed themselves as Meralco inspectors and entered
complainants' stockyards and residence located at 2663 Honduras Street, Makati, Metro Manila and at 240
Quirino Avenue, Tambo Paranaque for the purpose of searching smuggled goods found therein without the
consent of the owner thereof;
That after the search, respondents on August 13, 1990 up to August 25, 1990, this time clothed with a Warrant
of Seizure and Detention, with the aid of the Makati Police and several heavily armed men entered
complainants stockyard located at 2663 Honduras St., Makati, Metro Manila, and pulled out therefrom several
machineries and truck spare parts without issuing the corresponding receipts to the complainants to cover all
the items taken.
Respondents claimed in their consolidated and verified comment that they are not liable for violation of
domicile because the places entered and searched by them appear not to be the residences of the
complainants but only their warehouses. As proof of this allegation, the respondents presented the pictures of
said warehouses, which are attached to their comment as Annexes "6", "6-A" to "6-C" and the Sheriff's return
likewise attached to their verified comments as Annex "7". According to the respondents, a charge for violation
of domicile may apply only if the place entered into against the will of the owner is used exclusively for
dwelling. In the case at bar, the place entered into was used more of a warehouse than a dwelling place.
Further respondents also claimed not liable for robbery (sic) because the complainants appear not to be the
owners of the properties taken. Moreover, the respondents claimed that the taking is lawful because the same
proceeded from a warrant of Seizures and Detention; there was no violence or intimidation of person
committed and that there was no intent to gain on the part of the respondents, the purpose of the seizure of the
subject goods being to collect customs duties and taxes due the government.
Lastly, the respondents disclaimed liability for a violation of R.A. 3019 because they deny having demanded
from the complainants the sum of P100,000.00. Instead according to the respondents, it was the complainants
who offered them P70,000.00 to delay the hauling of the seized goods as attested to in the joint affidavit of
CPSGT, Ricardo Coronado and Dennis Bantequi.
A preliminary investigation was conducted and on May 31, 1991, another hearing was held to give the parties a
chance to submit further evidence to support their respective claims.
On March 15, 1993 respondent Ombudsman issued a Resolution recommending that the case be dismissed
for lack of merit.
On May 17, 1993, petitioners moved for the reconsideration of said resolution, but the same was denied on
July 8, 1993.
Hence, the petition in G.R. No. 111223, which was filed on August 16, 1993.
In G.R. No. 111223, petitioners claim that respondent Ombudsman gravely abused his discretion in dismissing
the case and in denying petitioners' motion for reconsideration.

214

They allege that respondent Ombudsman ignored evidence incriminatory to the raiders; that the receipts did
not tally with petitioners' receipts nor with the Commission on Audit's inventory; that the respondents are guilty
of robbery and of violating petitioners' constitutional right against violation of domicile. For these reasons,
petitioners pray that the Ombudsman's resolution be reversed and that the Court direct the Ombudsman to
cause the filing of criminal charges as may be warranted against respondents.
We find the petition in G.R. No. 111223 devoid of merit.
The Court, recognizing the investigatory and prosecutory powers granted by the Constitution to the Office of
the Ombudsman and for reasons of practicality, declared, in an En Banc resolution dated August 30, 1993,
issued in G.R. Nos. 103446-47 3 that the Court will not interfere nor pass upon findings of public respondent
Ombudsman to avoid its being hampered by innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, and that it will
not review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to
file an information in court or dismiss a complaint by a private complainant. The dismissal by the Ombudsman
of petitioners' complaint, therefore, stands.
We will now discuss G.R. No. 104604.
Petitioners contend: (1) that the Court of Appeals erred in not holding that the Collector of Customs could no
longer order the seizure for the second time of items previously seized and released after amnesty payments
of duties and taxes; (2) that the Bureau of Customs has lost jurisdiction to order the seizure of the items
because the importation had ceased; (3) that the seizure of the items deprived the petitioners of their
properties without due process of law; and (4) that there is no need to exhaust administrative remedies.
We find no merit in petitioners' contentions.
There is no question that Regional Trial Courts are devoid of any competence to pass upon the validity or
regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise
interfere with these proceedings 4 The Collector of Customs sitting in seizure and forfeiture proceedings has
exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable
goods. The Regional Trial Courts are precluded from assuming cognizance over such matters even through
petitions of certiorari, prohibition or mandamus. 5
It is likewise well-settled that the provisions of the Tariff and Customs Code and that of Republic Act No. 1125,
as amended, otherwise known as "An Act Creating the Court of Tax Appeals," specify the proper fora and
procedure for the ventilation of any legal objections or issues raised concerning these proceedings. Thus,
actions of the Collector of Customs are appealable to the Commissioner of Customs, whose decision, in turn,
is subject to the exclusive appellate jurisdiction of the Court of Tax Appeals and from there to the Court of
Appeals.
The rule that Regional Trial Courts have no review powers over such proceedings is anchored upon the policy
of placing no unnecessary hindrance on the government's drive, not only to prevent smuggling and other
frauds upon Customs, but more importantly, to render effective and efficient the collection of import and export
duties due the State, which enables the government to carry out the functions it has been instituted to perform.
6
Even if the seizure by the Collector of Customs were illegal, which has yet to be proven, we have said that
such act does not deprive the Bureau of Customs of jurisdiction thereon.
Respondents assert that respondent Judge could entertain the replevin suit as the seizure is illegal, allegedly
because the warrant issued is invalid and the seizing officer likewise was devoid of authority. This is to lose
sight of the distinction between the existence of the power and the regularity of the proceeding taken under it.

215
The governmental agency concerned, the Bureau of Customs, is vested with exclusive authority. Even if it be
assumed that in the exercise of such exclusive competence a taint of illegality may be correctly imputed, the
most that can be said is that under certain circumstances the grave abuse of discretion conferred may oust it of
such jurisdiction. It does not mean however that correspondingly a court of first instance is vested with
competence when clearly in the light of the decisions the law has not seen fit to do so. 7
The allegations of petitioners regarding the propriety of the seizure should properly be ventilated before the
Collector of Customs. We have had occasion to declare:
The Collector of Customs when sitting in forfeiture proceedings constitutes a tribunal expressly vested by law
with jurisdiction to hear and determine the subject matter of such proceedings without any interference from
the Court of First Instance. (Auyong Hian v. Court of Tax Appeals, et al., 19 SCRA 10). The Collector of
Customs of Sual-Dagupan in Seizure Identification No. 14-F-72 constituted itself as a tribunal to hear and
determine among other things, the question of whether or not the M/V Lucky Star I was seized within the
territorial waters of the Philippines. If the private respondents believe that the seizure was made outside the
territorial jurisdiction of the Philippines, it should raise the same as a defense before the Collector of Customs
and if not satisfied, follow the correct appellate procedures. A separate action before the Court of First Instance
is not the remedy. 8
WHEREFORE, the petitions in G.R. No. 104604 and in G.R. No. 111223 are hereby DISMISSED for lack of
merit.
SO ORDERED.

216

BUREAU OF CUSTOMS V OGARIO

SECOND DIVISION
G.R. No. 138081

March 30, 2000

THE BUREAU OF CUSTOMS (BOC) and THE ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU
(EIIB), petitioners,
vs.
NELSON OGARIO and MARK MONTELIBANO, respondents.
MENDOZA, J.:
The question for decision in this case is whether the Regional Trial Court has jurisdiction to enjoin forfeiture
proceedings in the Bureau of Customs. In accordance with what is now settled law, we hold it does not.
The facts are as follows: On December 9, 1998, Felipe A. Bartolome, District Collector of Customs of Cebu,
issued a Warrant of Seizure and Detention1 of 25,000 bags of rice, bearing the name of SNOWMAN, Milled in
Palawan" shipped on board the M/V "Alberto", which was then docketed at Pier 6 in Cebu City. The warrant
was issued on the basis of the report of the Economic Intelligence and Investigation Bureau (EIIB), Region VII
that the rice had been illegally imported. The report stated that the rice was landed in Palawan by a foreign
vessel and then placed in sacks marked "SNOWMAN," Milled in Palawan." It was then shipped to Cebu City on
board the vessel M/V "Alberto." Forfeiture proceedings were started in the customs office in Cebu, docketed as
Cebu Seizure Identification Case No. 17-98.
On December 10, 1998, respondent Mark Montelibano, the consignee of the sacks of rice, and his buyer,
respondent Elson Ogario, filed a complaint for injunction (Civil Case No. CEB-23077) in the Regional Trial
Court of Cebu City, alleging:
4.) That upon arrival of the herein-mentioned sacks of rice at the PIER 5 of Cebu City, Philippines on the 7th
day of December 1998 all of the defendants rushed to the port with long arms commanding the plaintiff's
laborer[s] to stopped [sic] the unloading of the same from the vessel named M/V Alberto. The defendants
alleged that the herein-mentioned rice were [sic] smuggled from abroad without even proof that the same were
[sic] purchased from a particularly country.
5.) By the mere suspicion of the defendants that the goods were smuggled from abroad, they immediately put
on hold the release of the goods from the ship and at the same time they jointly barred unloading and loading
activities of the plaintiffs' laborers of the herein-mentioned rice.
6.) The plaintiffs then presented all the pertinent and necessary documents to all of the defendants but the
latter refused to believe that the same is from Palawan because their minds are closed due to some reason or
another Civil [while] the plaintiffs believed that the same is merely an act of harassment. The documents are as
follows:
A.) Certification from the National Food Authority that the same is from Palawan. This is hereto attached Annex
A.
B) Bill of Lading issued by ANMA PHILIPPINES Shipping Company. This is hereto attached as Annex B.
7.) The acts of the defendants in stopping he loading and unloading activities of the plaintiff's laborers [have]
no basis in law and in fact; thus, unlawful and illegal. A mere suspicious which is not coupled with any proof or
evidence to that effect is [a] matter which the law prohibits.

217
8.) That for more than three days and despite the repeated plea of the plaintiffs that their goods should be
released to them and the defendants should stop from barring the unloading and loading activities, the latter
blindly refused [to] heed the same.
9.) That the acts of all of the defendants which are greatly unlawful and erroneous would caused [sic]
irreparable damage, injury, and grave injustices to the plaintiffs.
10.) That by way of example or correction for the public good and to deter the defendants from doing the same
acts to other businessmen, defendants should be held liable for exemplary damages in amount of not less than
One Hundred Thousand Pesos (P100,000.00).
11.) That the plaintiffs are entitled to the relief prayed in this complaint and the whole or part of such reliefs
consists in restraining perpetually the defendants from holding the herein-mentioned twenty-five thousand
sacks of rice. That defendants should be restrained perpetually from barring the unloading and loading
activities of the plaintiffs' laborers.
12.) That allowing the defendants to continue their unlawful acts would work grave injustice to the plaintiffs.
Unless a preliminary injunction be granted ex-parte, grave and irreparable injury and damage would result to
the plaintiffs before the latter can be heard on notice.
13.) That if the defendants be not restrained perpetually from their unlawful acts, the herein-mentioned rice will
deteriorate and turn into dusts [sic] if not properly disposed.1wphi1.nt
14.) That a Warrant of Seizure and detention issued by the Collector of Custom[s] dated December 9, 1998 be
quashed because the defendants' act of seizing and detaining the herein-mentioned sacks of rice are illegal.
The continuing act of detaining the herein-mentioned sacks of rice will led to the deterioration of the same.
That no public auction sale of the same should be conducted by the Bureau of Custom[s] or any government
agenc[y].
15.) That plaintiffs are ready and willing to file a bond executed to the defendants in an amount to be fixed by
this Honorable Court to the effect that plaintiffs will pay to the defendants all damages which they may sustain
by reason of the injunction if this Honorable Court should finally decide that the plaintiffs are not entitled
thereto.
PRAYER
WHEREFORE, Premised on the foregoing, it is most respectfully prayed before this Honorable Court that a
restraining order or temporary injunction be immediately issued prohibiting the defendants from holding
plaintiffs' above-mentioned goods. That it is further prayed that a restraining order or temporary injunction be
issued prohibiting the defendants from barring the unloading and loading activities of the plaintiffs' laborers.
Further, the plaintiffs prayed that the warrant of seizure and detention issued by the Collector of Custom[s]
dated December 9, 1998 be quashed and no public auction sale of the same should be conducted by any
government agency or authority.
It is further prayed that after due hearing, judgment be rendered:
1.) Making the restraining order and/or preliminary injunction permanent.
2.) Ordering the defendants jointly to pay exemplary or corrective damages to the plaintiff[s] in the amount of
One Hundred Thousand Pesos (P100,000.00)
Such other relief which are just and demandable under the circumstances are also prayed for.2

218
In separate motions, petitioners Bureau of Customs (BOC), Port of Cebu3 and the EIIB, as well as the
Philippine Navy and Coast Guard, sought the dismissal of the complaint on the ground that the RTC had no
jurisdiction, but their motions were denied. In its resolution, dated January 11, 1999, the RTC said:
The Warrant of Seizure and Detention issued by the Bureau of Customs cannot divest this court of jurisdiction
since its issuance is without legal basis as it was anchored merely on suspicion that the items in question were
imported or smuggled. It is very clear that the defendants are bereft of any evidence to prove that the goods
were indeed imported or smuggled, that is why the plaintiffs have very vigorously protested against the seizure
of cargoes by the defendants. In fact, as revealed by defendants' counsel, the Warrant of Seizure and
Detention was issued merely to shift the burden of proof to the shippers or owners of the goods to prove that
the bags of rice were not imported or smuggled. However, the court feels this is unfair because the settled rule
is that he who alleges must prove the same. Besides, at this time when our economy is not good, it would be a
[dis]service to the nation to use the strong arm of the law to make things hard or difficult for the businessmen.4
The 25,000 bags of rice were ordered returned to respondents upon the posting by them of an P8,000,000.00
bond.
Petitioners BOC and EIIB moved for a reconsideration, but their motion was denied by the RTC in its order
dated January 25, 1999.5 In the same order, the RTC also increased the amount of respondents' bond to
P22,500,000.00. On certiorari to the Court of Appeals, the resolution and order of the RTC were sustained.6
Accordingly, on April 26, 1999, upon motion of respondents, the RTC ordered the sheriff to place in
respondents' possession the 25,000 bags of rice.
Meanwhile, in the forfeiture proceedings before the Collector of Customs of Cebu (Cebu Seizure Identification
Case No. 17-98), a decision was rendered, the dispositive portion of which reads:
WHEREFORE, by virtue of the authority vested in me by law, it is hereby ordered and decreed that the vessel
M/V "Alberto"; the 25,000 bags of rice brand "Snowman"; and the two (2) trucks bearing Plate Nos. GCC 844
and GHZ 388 are all FORFEITED in favor of the government to be disposed of in the manner prescribed by
law while the seven (7) trucks bearing Plate Nos. GFX 557; GFX 247; TPV 726; GBY 874; GVE 989; and GDF
548 are RELEASED in favor of their respective owners upon proper identification and compliance with
pertinent laws, rules and regulations.
Since this decision involves the release of some of the articles subject matter of herein case which is
considered adverse to the government, the same is hereby elevated to the Commissioner of Customs for
automatic review pursuant to Republic Act 7651. 7
The District Collector of Customs found "strong reliable, and convincing evidence" that the 25,000 bags of rice
were smuggled. Said evidence consisted of certifications by the Philippine Coast Guard, the Philippine Ports
Authority, and the Arrastre Stevedoring Office in Palawan that M/V "Alberto" had never docked in Palawan
since November, 1998; a certification by Officer-in-Charge Elenita Ganelo of the National Food Authority (NFA)
Palawan that her signature in NFA Grains Permit Control No. 00986, attesting that the 25,000 bags of rice
originated from Palawan, was forged; and the result of the laboratory analysis of a sample of the subject rice
by the International Rice Research Institute (IRRI) stating that the sample "does not compare with any of our
IRRI released varieties."
Respondent Montelibano did not take part in the proceedings before the District Collector of Customs despite
due notice sent to his counsel because he refused to recognize the validity of the forfeiture proceedings.8
On April 30, 1999, petitioners filed the present petition for review on certiorari of the decision of the Court of
Appeals, dated April 15, 1999, upholding the resolution of the RTC denying petitioners' motions to dismiss.
They contend that:

219
I. SINCE THE REGIONAL TRIAL COURT OF CEBU CITY DOES NOT HAVE JURISDICTION OVER THE
SUBJECT MATTER OF THE INSTANT CONTROVERSY, AND THE BUREAU OF CUSTOMS HAD
ALREADY EXERCISED EXCLUSIVE ORIGINAL JURISDICTION OVER THE SAME, THE COURT OF
APPEALS SERIOUSLY ERRED IN SUSTAINING THE EXERCISE BY THE TRIAL JUDGE OF
JURISDICTION OVER THE CASE BELOW AND IN AFFIRMING THE TRIAL JUDGE'S RESOLUTION DATED
JANUARY 11, 1999 AND ORDER DATED JANUARY 25, 1999 IN CIVIL CASE NO. CEB-23077.
II. SINCE RESPONDENTS HAVE NOT EXHAUSTED ALL THE ADMINISTRATIVE REMEDIES PROVIDED
FOR BY LAW, THE COURT OF APPEALS SERIOUSLY ERRED IN UPHOLDING THE TRIAL JUDGE'S
DENIALS OF PETITIONERS' SEPARATE MOTIONS TO DISMISS AND MOTIONS FOR
RECONSIDERATION.9
In Jao v. Court of Appeals, 10 this Court, reiterating its ruling in a long line of cases, said:
There is no question that Regional Trial Courts are devoid of any competence to pass upon the validity or
regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise
interfere with these proceedings. The Collector of Customs sitting in seizure and forfeiture proceedings has
exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable
goods. The Regional Trial Courts are precluded from assuming cognizance over such matters even through
petitions of certiorari, prohibition or mandamus.
It is likewise well-settled that the provisions of the Tariff and Customs Code and that of Republic Act No. 1125,
as amended, otherwise known as "An Act Creating the Court of Tax Appeals," specify the proper fora and
procedure for the ventilation of any legal objections or issues raised concerning these proceedings. Thus,
actions of the Collector of Customs are appealable to the Commissioner of Customs, whose decision, in turn,
is subject to the exclusive appellate jurisdiction of the Court of Tax Appeals and from there to the Court of
Appeals.
The rule that Regional Trial Courts have no review powers over such proceedings is anchored upon the policy
of placing no unnecessary hindrance on the government's drive, not only to prevent smuggling and other
frauds upon Customs, but more importantly, to render effective and efficient the collection of import and export
duties due the State, which enables the government to carry out the functions it has been instituted to perform.
Even if the seizure by the Collector of Customs were illegal, which has yet to be proven, we have said that
such act does not deprive the Bureau of Customs of jurisdiction thereon.
Respondents cite the statement of the Court of Appeals that regular courts still retain jurisdiction "where, as in
this case, for lack of probable cause, there is serious doubt as to the propriety of placing the articles under
Customs jurisdiction through seizure/forfeiture proceedings" 11 They overlook the fact, however, that under the
law, the question of whether probable cause exists for the seizure of the subject sacks of rice is not for the
Regional Trial Court to determine. The customs authorities do not have to prove to the satisfaction of the court
that the articles on board a vessel were imported from abroad or are intended to be shipped abroad before
they may exercise the power to effect customs' searches, seizures, or arrests provided by law and continue
with the administrative hearings. 12 As the Court held in Ponce Enrile v. Vinuya: 13
The governmental agency concerned, the Bureau of Customs, is vested with exclusive authority.1wphi1 Even
if it be assumed that in the exercise of such exclusive competence a taint of illegality may be correctly imputed,
the most that can be said is that under certain circumstances the grave abuse of discretion conferred may oust
it of such jurisdiction. It does not mean however that correspondingly a court of first instance is vested with
competence when clearly in the light of the above decisions the law has not seen fit to do so. The proceeding
before the Collector of Customs is not final. An appeal lies to the Commissioner of Customs and thereafter to
the Court of Tax Appeals. It may even reach this Court through the appropriate petition for review. The proper
ventilation of the legal issues raised is thus indicated. Certainly a court of first instance is not therein included.
It is devoid of jurisdiction.

220

It is noteworthy that because of the indiscriminate issuance of writs of injunction, the Supreme Court issued on
June 25, 1999 Administrative Circular No. 07-99 to all judges of lower courts entitled EXERCISE OF UTMOST
CAUTION, PRUDENCE, AND JUDICIOUSNESS IN ISSUANCE OF TEMPORARY RESTRAINING ORDERS
AND WRITS OF PRELIMINARY INJUNCTION. The circular states in part:
Finally, judges should never forget what the Court categorically declared in Mison v. Natividad (213 SCRA 734,
742 [1992]) that "[b]y express provision of law, amply supported by well-settled jurisprudence, the Collector of
Customs has exclusive jurisdiction over seizure and forfeiture proceedings, and regular courts cannot interfere
with his exercise thereof or stifle or put it to naught.
The Office of the Court Administrator shall see to it that this circular is immediately disseminated and shall
monitor implementation thereof.1wphi1.nt
STRICT OBSERVANCE AND COMPLIANCE of this Circular is hereby enjoined.
WHEREFORE, the temporary restraining order issued on May 17, 1999 is hereby made permanent. The
decision, dated April 15, 1999, of the Court of Appeals is REVERSED and Civil Case No. CEB-23077 in the
Regional Trial Court, Branch 5, Cebu City is DISMISSED.
SO ORDERED.

221

CAPUCHINO V APOLONIO
SECOND DIVISION
A.M. No. P-04-1771
September 5, 2011
(formerly OCA I.P.I. No. 03-1618-P)
Atty. PACIFICO CAPUCHINO, Complainant,
vs.
Stenographer MARIPI A. APOLONIO, Legal Researcher CARINA C. BRETANIA, Court Stenographer
ANDREALYN M. ANDRES, Court Stenographer ANA GRACIA E. SANTIAGO, Interpreter MA. ANITA G.
GATCHECO, Branch Clerk of Court ROMEO B. ASPIRAS, Clerk IV FE L. ALVAREZ and Process Server
EUGENIO P. TAGUBA, Municipal Trial Court in Cities, Branch 2, Santiago City, Isabela, Respondents.
DECISION
BRION, J.:
This administrative case involves eight (8) personnel of the Municipal Trial Court in Cities (MTCC), Santiago
City, Isabela, Branch 2, namely: Branch Clerk of Court Romeo B. Aspiras; Stenographers Maripi A. Apolonio,
Andrealyn M. Andres and Ana Gracia E. Santiago; Legal Researcher Carina C. Bretania; Interpreter Ma. Anita
G. Gatcheco; Clerk IV Fe L. Alvarez; and Process Server Eugenio P. Taguba (respondents). They were
charged with Grave Misconduct and Violation of the Anti-Wire Tapping Act (Republic Act No. 4200) in two
identical complaints, both dated January 20, 2003, filed by Atty. Pacifico Capuchino with the Office of the
Ombudsman1 (Ombudsman) and this Court.2 The Ombudsman, in an Order3 dated July 31, 2003, referred
the complaint to the Office of the Court Administrator (OCA) for appropriate action, "considering that the
respondents are court personnel"4 who are under the administrative supervision of this Court.5 It dismissed
the criminal aspect of the complaint without prejudice to the outcome of the present administrative case against
the respondents.
THE COMPLAINT
Atty. Capuchino alleged that he was the counsel of the accused in Criminal Case No. II-4066, entitled "People
of the Philippines v. Marirose Valencia," for violation of Batas Pambansa Blg. 22, filed with the MTCC of
Santiago City, Isabela, Branch 2. The accused, Marirose Valencia, was convicted of the offense charged and
was ordered to pay private complainant Reynaldo Valmonte the amount of P120,000.00, plus interest at the
rate of 12% per annum computed from the time of the filing of the criminal case. Atty. Capuchino filed a motion
for reconsideration of Valencias conviction. Pending resolution of the motion for reconsideration, he tried to
settle the case amicably with Valmonte.
On May 9, 2001, Atty. Capuchino and Valencia met with Valmonte at the MTCC. They offered Valmonte the
amount of P120,000.00, asking him to withdraw the criminal case he filed against Valencia. Valmonte refused
and demanded a higher amount. As they failed to come to a settlement by lunchtime, they agreed to schedule
another meeting. Apprehensive of carrying a big amount, Valencia requested Tessie Duque (who was the only
personnel left in the court at that time) to hold the money for safekeeping until their next meeting with
Valmonte. Duque initially refused to receive the money, but relented when Valencia insisted; she agreed to
hold the money temporarily, and issued a provisional receipt for the amount.
Meanwhile, the court denied Atty. Capuchinos motion for reconsideration and issued a Writ of Execution. To
show her readiness to settle her obligation, Valencia presented the provisional receipt issued by Duque for the
P120,000.00.
The respondents, claiming that Duque was not authorized to receive money from litigants even for safekeeping
purposes, brought the matter to the attention of Judge Maxwell Rosete. Judge Rosete required Duque to

222
comment on the respondents report. Instead of filing the required comment, Duque filed a motion to set the
case for hearing.
On September 24, 2002, Atty. Capuchino and Valencia went to the MTCC to attend the hearing on their motion
for the withdrawal of the money deposited with Duque. The hearing did not materialize because Judge Rosete
was absent. Atty. Capuchino went to see Aspiras to inquire about the next scheduled hearing. Instead of
attending to their request, respondents Aspiras, Apolonio and Taguba casually led them to the court sala and
asked them questions about the money they entrusted to Duque. Atty. Capuchino later learned that their
conversations had been tape recorded by Apolonio with the aid of the other court personnel. The tapes were
then used by the respondents to report the illegal deposit to then Chief Justice Hilario G. Davide, Jr., in a lettercomplaint dated October 3, 2002.6 They asked for an immediate investigation "before it is blown out of
proportion."7 The respondents letter-complaint was later docketed as A.M. No. P-05-1958, entitled "Office of
the Court Administrator v. Duque."8
Atty. Capuchino claimed that his and his clients conversations with Aspiras, Apolonio and Taguba were
recorded by Apolonio, with the assistance of the other court personnel, without his and his clients knowledge,
in violation of the Anti-Wire Tapping Act. He further claimed that all the respondents conspired with each other
to illegally record their conversations.
In separate 1st Indorsements,9 all dated May 7, 2003, the OCA required the respondents to comment on the
charges against them.
In a Joint Comment10 dated June 16, 2003, respondents Bretania, Gatcheco, Santiago and Andres denied
having instigated or influenced Judge Rosete to issue an Order directing Duque to comment on the allegation
that she has no authority to receive money from court litigants, even for safekeeping purposes. They also
denied involvement in the taping incident. Gatcheco and Andres further claimed that they did not report for
work on the date the incident complained of transpired, as they were on leave. They submitted photocopies of
their Daily Time Record in support of their contentions.
Respondent Alvarez, in her Comment11 dated June 16, 2003, denied involvement in the incident. Although
she intended to keep silent about the incident, she signed the administrative complaint prepared by Taguba
because "she is interested to know the truth, no more, no less."12
For his part, Taguba claimed that he filed a complaint against Duque because he believed that Duques act
"was improper as it is unauthorized and unlawful;" and that he was not motivated by malice in filing the
complaint. Further, he argued that Atty. Capuchino has no cause to file the present complaint as the criminal
case of his client had already been terminated.13
Aspiras and Apolonio, in their joint Comment14 dated June 16, 2003, asserted that "the contention that the
alleged tape record[ing] is inadmissible in evidence by virtue of R. A. No. 4200 cannot hold water because[:]
the matters covered are clothed with public interest the interest of the Judiciary itself to stand with
unblemished integrity."15
Atty. Capuchino filed a Reply16 dated July 18, 2003 to the respondents comments, contending that violation of
a law cannot be condoned, no matter how good and noble the intention of the perpetrators is. He averred that
as a lawyer, it is his duty to call attention to violations of the law. He cannot see any reason why the
respondents made a big fuss over the provisional receipt issued by Duque, but he can discern their sinister
motives. On the respondents allegation that he has nothing at stake or interest to file the present case, he
counter-argued that the respondents were the ones who have no stake or interest in the money privately
entrusted to Duque and who merely pretended that they were doing a "messianic act." He referred to
respondent Taguba as a "false messiah" who has a string of cases for extortion filed with this Court. He also
said that seven of the respondents came to see him at this house several times to apologize, to plead for
mercy, and to ask for the withdrawal of the case against them.

223
On the recommendation of the OCA, the Court issued a Resolution,17 dated January 14, 2004, ordering the
redocketing of Atty. Capuchinos complaint as a regular administrative matter; and referring the case to the
Executive Judge of the MTCC, Santiago City, Isabela, for investigation, report and recommendation. Hence,
the present administrative case.
Judge Ruben R. Plata, (then the Executive Judge of the MTCC of Santiago City, Isabela) inhibited himself from
the case on the ground that all the respondents have filed an administrative complaint against him, docketed
as A.M. OCA I.P.I. No. 03-1483-MTJ, and that he filed against all the respondents a criminal case for perjury
and libel with the Office of the Prosecutor of Manila.18
In a Resolution dated March 31, 2004, the case was instead referred to Judge Fe Albano Madrid, Executive
Judge, Regional Trial Court, Santiago City, Isabela, for investigation, report and recommendation.19
During the scheduled hearings of the case, Atty. Capuchino could not appear as he had suffered a stroke and
was under medication. All the eight (8) respondents moved to dismiss the complaint for lack of basis, and for
Atty. Capuchinos failure to appear and to present evidence against them. They manifested that they have
nothing more to add to their comments filed with the Court.
In her undated Report,20 Judge Madrid found that the respondents were not guilty of misconduct, reporting
that:
The investigating judge believes that Atty. Capuchino would not care to appear and substantiate his complaint.
He was not a party to the taped conversation. He was not prejudiced by the letter-complaint of Eugenio
Taguba against Tessie Duque nor about the taped conversation. I suppose that the complaint against the
respondents is just a means to get back at them because of the expose they made regarding the P120,000.00.
At any rate, the Investigating Judge believes that the outrage of the court employees which prompted them to
bring to the attention of the Supreme Court what they believe was an illegal transaction of another court
employee is definitely not a misconduct.
As the matters raised in the present administrative case were related to the letter-complaint filed by Taguba
and the other respondents against Duque, the OCA recommended the consolidation of the present
administrative case with A.M. No. P-05-1958 (formerly A.M. OCA I.P.I. No. 03-1718-P).21 However, no
consolidation was effected because A.M. No. P-05-1958 had already been decided on February 7, 2005.
THE OCAs REPORT & RECOMMENDATION
In an Evaluation Report dated October 12, 2005,22 the OCA disagreed with the findings of Judge Madrid. It
found that the act of respondents Taguba, Aspiras, Apolonio and Santiago of surreptitiously taping their
conversations with Atty. Capuchino and Valencia, without the latters knowledge and consent, constitutes
misconduct and/or conduct unbecoming of a court employee.
The OCA also confirmed Atty. Capuchinos allegation that respondent Taguba had been charged with several
administrative cases before this Court. Taguba, together with respondents Apolonio and Andres, was found
guilty of gambling during office hours in A.M. No. P-01-1517, and was suspended for one (1) month and one
(1) day. Taguba was also found guilty of violation of Republic Act No. 3019 and conduct unbecoming a court
employee in A.M. No. P-05-1942, and was suspended for six (6) months.
The OCA recommended that:
1. the criminal aspect of the case be referred back to the Ombudsman for proper disposition;
2. respondents Taguba, Apolonio and Santiago be suspended for one (1) month for misconduct;

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3. respondents Gatcheco and Andres be exonerated as they were absent when the act complained of
transpired;
4. the issue of Aspiras administrative liability be declared moot and academic as he has retired from the
service; and
5. the instant case against Bretania be dismissed as her participation in the act complained of could not clearly
be established.
On December 14, 2005, the Court issued a Resolution: (1) exonerating respondents Gatcheco and Andres of
the complaint against them, (2) declaring the complaint against Aspiras moot and academic, and (3) dismissing
the complaint against Bretania.23 Also, on the recommendation of the OCA,24 the Court dismissed in its
Resolution dated July 31, 2006,25 the complaint against Alvarez for insufficiency of evidence. Hence, the
present administrative case only relates to respondents Taguba, Apolonio and Santiago.
THE COURTS RULING
The issue in an administrative case is not essentially about the wrong inflicted on the complainant by the
respondent; the main question is whether the accused employee breached the norms and standards of service
in the judiciary.26 We resolve this case based on this perspective and not on the basis of whether respondents
Taguba, Apolonio and Santiago violated the Anti-Wire Tapping Act.
Taguba denied that he was motivated by malice in bringing Valencias deposit of funds to Judge Rosetes
attention and in filing a complaint against Duque based on the taped conversation. He believed that the taping
was for the good of the service; all he wanted was to ferret out the truth. He insisted that Atty. Capuchino has
no cause to file the complaint against them because the criminal case of his client had already been
terminated. Santiago denied any participation in the taping, insisting that she was implicated because she was
the owner of the tape recorder used. It was borrowed from her by somebody whom she could no longer
remember. On her part, Apolonio, together with Aspiras, maintained that the accusation against them cannot
prosper because the matters covered are matters of public interest the interest of the Judiciary itself.
The Court finds the respondents contentions without merit. Their concerted acts of leading Atty. Capuchino
and Valencia into the court sala, engaging them in conversation regarding the money deposited with Duque,
taping their conversation without Capuchinos & Valencias knowledge, and later using the taped conversation
as basis of the complaint they filed against Duque constitute misconduct. Santiagos claim that she forgot
who borrowed her tape recorder and for what purpose it was borrowed is not credible.
The Court observes that there exists animosity among the judges and employees of the court. When the
present case was referred to Judge Plata for investigation, he inhibited himself on the ground that the
respondents had filed a complaint against him and that he had also filed a criminal case against all of them.
The filing of the complaint against Duque was instigated by Taguba. Initially signed only by Taguba, he
prevailed upon the other respondents to co-sign his letter addressed to then Chief Justice Hilario G. Davide,
Jr., which was later docketed as A.M. No. P-05-1958. He introduced as evidence in this complaint the tape
recorded conversation. Although Duque was penalized for simple misconduct, the Court found that there "was
no evidence that she was moved by evident bad faith, dishonesty or hatred"27 in receiving Valencias money
for safekeeping. We cannot say the same of Tagubas actions in the animosity-ridden atmosphere apparently
obtaining in the MTCC of Santiago City.
Making false accusations and sowing intrigues are acts unbecoming of a public servant. They run against the
principles of public service envisioned by the 1987 Constitution and by the Code of Conduct and Ethical
Standards for Public Officials & Employees (Republic Act No. 6713). These acts divert the attention of public
employees and the courts from their more important tasks, and result in undue wastage of government
resources; they cannot be tolerated if we are to demand the highest degree of excellence and professionalism
among public employees, and if we are to preserve the integrity and dignity of our courts.28

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Misconduct, on the other hand, is a transgression of some definite or established rule of action; more
particularly, it is unlawful behavior by the public officer and refers as well to wrongful or improper behavior
under applicable provisions of the Code of Ethics. The term "gross" connotes something "out of all measure;
beyond allowance; flagrant; shameful such conduct as is not be excused."29 For administrative liability to
attach, it must be established that the respondent was moved by bad faith, dishonesty, hatred or other similar
motives.30
Clearly, substantial evidence exists in this case to hold Taguba guilty of gross misconduct punishable by
dismissal from the service even for the first offense. Not only did he disregard the terms of the Anti-Wiretapping
Act within court premises where the public should feel most secure about their personal liberties. He undertook
the act to secure evidence against a co-employee; he obtained and used the taped conversation as basis for a
complaint against Duque who was penalized for the deposit she had accepted. We cannot accept, under these
circumstances, any claimed absence of bad faith after considering the devious method Taguba employed and
the purpose that it served, however lofty Taguba thought his purpose had been.
Unfortunately, we can no longer impose the penalty of dismissal on Taguba because he has retired from the
service on disability effective September 1, 2006. Additionally, we recently found Taguba guilty of gross
misconduct in another case A.M. No. MTJ-08-1727, entitled "Milagros Villaceran and Omar T. Miranda v.
Judge Maxwel Rosete and Process Server Eugenio Taguba, etc."31 for soliciting P25,000.00 from the
defendant in a pending case with the promise that he would work for the defendants acquittal. In lieu of the
dismissal that at that point we could no longer impose because of his previous retirement, the Court "given
the gravity of respondent Tagubas offense" ordered the forfeiture of Tagubas disability retirement benefits.
While we therefore find Taguba administratively liable in the present case, we have run out of administrative
penalties to impose on him. Nothing, however, can stop us from holding and declaring him liable for the gross
misconduct that he stands charged with.lawphi1
For their participation in the illegal tape recording of the complainant and his client, the Court finds respondents
Apolonio and Santiago guilty of simple misconduct. We so rule given the evidence that they merely followed
the lead of Taguba. Under the Uniform Rules on Administrative Cases in the Civil Service, simple misconduct
is a less grave offense punishable by suspension for one (1) month and one (1) day to six (6) months for the
first offense, and dismissal for the second offense.32
Since the penalty of dismissal can no longer be imposed on respondent Taguba, we can only reiterate the
directive in A.M. No. MTJ-08-172733 ordering the forfeiture of his remaining retirement benefits.
Respondent Maripi A. Apolonio has previously been found guilty of simple misconduct for gambling during
office hours, together with respondents Taguba and Andres, in A.M. No. P-01-1517.34 They were suspended
for one (1) month and one (1) day. Since this is Maripi A. Apolonios second offense, the penalty of dismissal
should be imposed. We opt, however, to merely order her SUSPENSION from the service for one (1) year
effective immediately, in light of our recognition that her present act is different in nature from her first offense;
the elements of perversity and impenitence that are considered in a repetition of the same offense are not
necessarily present. Thus, we accord her the benefit of the doubt.
This is respondent Ana Gracia E. Santiagos first offense; thus, the Court hereby imposes on her a lighter
penalty and orders her SUSPENSION from the service for only six (6) months.
WHEREFORE, the Court finds respondent Eugenio P. Taguba guilty of GROSS MISCONDUCT, and
respondents Maripi A. Apolonio and Ana Gracia E. Santiago guilty of SIMPLE MISCONDUCT.
Maripi A. Apolonio is ordered SUSPENDED for one year effective immediately, with the warning that any
similar or graver offense at any time in the future shall merit the penalty of outright dismissal.1wphi1

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Ana Gracia E. Santiago is hereby ordered SUSPENDED for six (6) months effective immediately, with the
warning that any similar or graver offense at any time in the future shall merit the penalty of outright dismissal.
Let a copy of the records of OMB-L-C-03-0619-E be returned to the Office of the Ombudsman and a copy of
this Decision be furnished the said Office, for appropriate action with respect to the criminal aspect of the case.
SO ORDERED.

227

BRICCIO POLLO V DAVID

EN BANC
G.R. No. 181881

October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,
DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL
SERVICE COMMISSION, Respondents.
DECISION
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government employee who was charged
administratively and eventually dismissed from the service. The employees personal files stored in the
computer were used by the government employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
Decision1 dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The
CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to
nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty,
grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.)
No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officerin-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya
Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier service
(LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated
Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents
marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter was given
directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an
employee of your agency to be a lawyer of an accused govt employee having a pending case in the csc. I
honestly think this is a violation of law and unfair to others and your office.

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I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of
the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the
Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being tainted.
Concerned Govt employee3
Chairperson David immediately formed a team of four personnel with background in information technology
(IT), and issued a memo directing them to conduct an investigation and specifically "to back up all the files in
the computers found in the Mamamayan Muna (PALD) and Legal divisions."4 After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around
5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director
Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was
witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity.
At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out
of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders
of the CSC Chair. The text messages received by petitioner read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the
Chairman. If you can make it here now it would be better."
"All PCs Of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed about this.
"We cant do anything about it its a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5
Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just
get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the
team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the same
day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and
secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files
sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents
of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found that most of the files
in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner,
numbering about 40 to 42 documents, were draft pleadings or letters7 in connection with administrative cases
in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order8
dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or
counter-affidavit within five days from notice.
Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the
following observations:
Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with
administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the
CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on
behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the
inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing
interests adverse and inimical to the interest of the CSC as the central personnel agency of the government
tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so
prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it

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with seeming regularity. It would also be the height of naivete or credulity, and certainly against common
human experience, to believe that the person concerned had engaged in this customary practice without any
consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees.
That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the
presumption that he was the one responsible or had a hand in their drafting or preparation since the computer
of origin was within his direct control and disposition.9
Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which
had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the
CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed
personal files in his computer, and subsequently asking him to submit his comment which violated his right
against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he
was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his
computer were his personal files and those of his sister, relatives, friends and some associates and that he is
not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to
privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that
though government property, the temporary use and ownership of the computer issued under a Memorandum
of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply
with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil
Service (URACC). In view of the illegal search, the files/documents copied from his computer without his
consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10
On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the
Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and
Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate
whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was
likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution.
Petitioner received a copy of Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal
charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC
Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with
pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by
certain persons whom he permitted, at one time or another, to make use of his computer out of close
association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted
his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client
who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed
legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of
the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director
Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of
the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC
denied the omnibus motion. The CSC resolved to treat the said motion as petitioners answer.
On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as CAG.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated
February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence
of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against
respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A.
Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against
Director Buensalida.14

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On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the
case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and
preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the
CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in
the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation exparte.16 Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation
proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his
request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the
consequences of petitioner and/or his counsels non-appearance.17 This prompted petitioner to file another
motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.18
On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioners motion to set aside the
denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G.
Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was
deemed to have waived his right to the formal investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A.
Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and
Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation
of civil service eligibilities and bar from taking future civil service examinations.21
On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the
dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades
the private files of an employee stored in the computer assigned to him for his official use, in the course of
initial investigation of possible misconduct committed by said employee and without the latters consent or
participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the
leading case of OConnor v. Ortega22 as authority for the view that government agencies, in their capacity as
employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace
without meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited by
the CSC is the more recent case of United States v. Mark L. Simons23 which declared that the federal
agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did not, at the same time, erode the
respondents legitimate expectation of privacy in the office in which the computer was installed, still, the
warrantless search of the employees office was upheld as valid because a government employer is entitled to
conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is
reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable
expectation of privacy with regard to the computer he was using in the regional office in view of the CSC
computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the
view that the search of petitioners computer successfully passed the test of reasonableness for warrantless
searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the
search in its capacity as government employer and that it was undertaken in connection with an investigation
involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With
the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of
evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified
petitioners dismissal from the service with all its accessory penalties.

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In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing him
from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent
motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of
discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the
basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted
and the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the backup of files in petitioners computer and later confiscating the same, Chairperson David had encroached on the
authority of a judge in view of the CSC computer policy declaring the computers as government property and
that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or
receive on the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding with the
formal investigation as there was no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS
IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH
AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF
CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC
RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT
INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELFINCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS
CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND
ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN
IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE
EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE
DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE
CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL
WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE
DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;
IV

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THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS,
ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE
ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED
JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE
LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26
Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying
of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to
privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the
guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,27
which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable"
searches and seizures.28 But to fully understand this concept and application for the purpose of resolving the
issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction.
As the Court declared in People v. Marti29 :
Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in
the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things to be seized."
(Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such,
the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate
Courts which are considered doctrinal in this jurisdiction.30
In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his
right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment
extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of
privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the expectation be one that society is prepared to
recognize as reasonable (objective).32
In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the workplace,
the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at
union headquarters that he shared with other union officials, even as the latter or their guests could enter the
office. The Court thus "recognized that employees may have a reasonable expectation of privacy against
intrusions by police."

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That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of
OConnor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a
violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of
the psychiatric residency program, sexual harassment of female hospital employees and other irregularities
involving his private patients under the state medical aid program, searched his office and seized personal
items from his desk and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not
lose Fourth Amendment rights merely because they work for the government instead of a private employer."35
A plurality of four Justices concurred that the correct analysis has two steps: first, because "some government
offices may be so open to fellow employees or the public that no expectation of privacy is reasonable", a court
must consider "[t]he operational realities of the workplace" in order to determine whether an employees Fourth
Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an
employers intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of reasonableness under all the
circumstances."36
On the matter of government employees reasonable expectations of privacy in their workplace, OConnor
teaches:
x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employees expectation of privacy must be assessed in the
context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other
employees, and business and personal invitees. Instead, in many cases offices are continually entered by
fellow employees and other visitors during the workday for conferences, consultations, and other work-related
visits. Simply put, it is the nature of government offices that others such as fellow employees, supervisors,
consensual visitors, and the general public may have frequent access to an individuals office. We agree with
JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not
disappear merely because the government has the right to make reasonable intrusions in its capacity as
employer," x x x but some government offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector,
the question of whether an employee has a reasonable expectation of privacy must be addressed on a caseby-case basis.37 (Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas
Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of
privacy that society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr.
Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and
other private items in his own office while those work-related files (on physicians in residency training) were
stored outside his office, and there being no evidence that the hospital had established any reasonable
regulation or policy discouraging employees from storing personal papers and effects in their desks or file
cabinets (although the absence of such a policy does not create any expectation of privacy where it would not
otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his
desk and file cabinets.38
Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the
OConnor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals
simply concluded without discussion that the "searchwas not a reasonable search under the fourth
amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers]
is only to begin the inquiry into the standards governing such searches[W]hat is reasonable depends on the
context within which a search takes place. x x x Thus, we must determine the appropriate standard of
reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a
particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individuals

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Fourth Amendment interests against the importance of the governmental interests alleged to justify the
intrusion." x x x In the case of searches conducted by a public employer, we must balance the invasion of the
employees legitimate expectations of privacy against the governments need for supervision, control, and the
efficient operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employees
office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business
and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors,
who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast
to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are
hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely
incident to the primary business of the agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the "common-sense realization that government offices could not function if
every employment decision became a constitutional matter." x x x
xxxx
The governmental interest justifying work-related intrusions by public employers is the efficient and proper
operation of the workplace. Government agencies provide myriad services to the public, and the work of these
agencies would suffer if employers were required to have probable cause before they entered an employees
desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept
of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a
search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning
for a routine inventory conducted by public employers for the purpose of securing state property. x x x To
ensure the efficient and proper operation of the agency, therefore, public employers must be given wide
latitude to enter employee offices for work-related, noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee
misconduct. Even when employers conduct an investigation, they have an interest substantially different from
"the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies
operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the
inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in
many cases, public employees are entrusted with tremendous responsibility, and the consequences of their
misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law
enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public
employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a
proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at
issue here would impose intolerable burdens on public employers. The delay in correcting the employee
misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into
tangible and often irreparable damage to the agencys work, and ultimately to the public interest. x x x
xxxx
In sum, we conclude that the "special needs, beyond the normal need for law enforcement make
theprobable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions
as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden
the efforts of government employers to ensure the efficient and proper operation of the workplace, nor
authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer
intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory,
work-related purposes, as well as for investigations of work-related misconduct, should be judged by the
standard of reasonableness under all the circumstances. Under this reasonableness standard, both the
inception and the scope of the intrusion must be reasonable:

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"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether
theaction was justified at its inception, x x x ; second, one must determine whether the search as actually
conducted was reasonably related in scope to the circumstances which justified the interference in the first
place," x x x
Ordinarily, a search of an employees office by a supervisor will be "justified at its inception" when there are
reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of workrelated misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to
retrieve a needed file. x x x The search will be permissible in its scope when "the measures adopted are
reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the
[misconduct]." x x x39 (Citations omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the factual dispute as to the character
of the search and neither was there any finding made as to the scope of the search that was undertaken, the
case was remanded to said court for the determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the search and its scope.
In OConnor the Court recognized that "special needs" authorize warrantless searches involving public
employees for work-related reasons. The Court thus laid down a balancing test under which government
interests are weighed against the employees reasonable expectation of privacy. This reasonableness test
implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40
OConnor was applied in subsequent cases raising issues on employees privacy rights in the workplace. One
of these cases involved a government employers search of an office computer, United States v. Mark L.
Simons41 where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA),
was convicted of receiving and possessing materials containing child pornography. Simons was provided with
an office which he did not share with anyone, and a computer with Internet access. The agency had instituted
a policy on computer use stating that employees were to use the Internet for official government business only
and that accessing unlawful material was specifically prohibited. The policy also stated that users shall
understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as
deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer
network, upon initial discovery of prohibited internet activity originating from Simons computer, to conduct a
remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded
pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from
a remote work station. Days later, the contractors representative finally entered Simons office, removed the
original hard drive on Simons computer, replaced it with a copy, and gave the original to the agency security
officer. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was
not around. The search team copied the contents of Simons computer; computer diskettes found in Simons
desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various
documents, including personal correspondence. At his trial, Simons moved to suppress these evidence,
arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the
district court denied the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and
office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search
remains valid under the OConnor exception to the warrant requirement because evidence of the crime was
discovered in the course of an otherwise proper administrative inspection. Simons violation of the agencys
Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the
capacity and interests of an employer. The warrantless entry into Simons office was reasonable under the
Fourth Amendment standard announced in OConnor because at the inception of the search, the employer had
"reasonable grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer
was already aware that Simons had misused his Internet access to download over a thousand pornographic
images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search

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was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did
not have such legitimate expectation of privacy with regard to the files in his computer.
x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a
legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a
legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that
society is prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons computer did not violate his Fourth Amendment rights
because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files
downloaded from the Internet. Additionally, we conclude that Simons Fourth Amendment rights were not
violated by FBIS retrieval of Simons hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in
light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor"
employees use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as
deemed appropriate." x x x This policy placed employees on notice that they could not reasonably expect that
their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the
files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS
notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching
and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here,
Simons has shown that he had an office that he did not share. As noted above, the operational realities of
Simons workplace may have diminished his legitimate privacy expectations. However, there is no evidence in
the record of any workplace practices, procedures, or regulations that had such an effect. We therefore
conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.
xxxx
In the final analysis, this case involves an employees supervisor entering the employees government office
and retrieving a piece of government equipment in which the employee had absolutely no expectation of
privacy equipment that the employer knew contained evidence of crimes committed by the employee in the
employees office. This situation may be contrasted with one in which the criminal acts of a government
employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the
employers policy and the conduct that violated the criminal law. We consider that FBIS intrusion into Simons
office to retrieve the hard drive is one in which a reasonable employer might engage. x x x42 (Citations
omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality of
a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of
secondary and tertiary schools, officers and employees of public and private offices, and persons charged
before the prosecutors office with certain offenses, have also recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the
drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this
case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is
to a large extent circumscribed by the companys work policies, the collective bargaining agreement, if any,

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entered into by management and the bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine,
reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.)
Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address
the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer
files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioners computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the employees relationship to
the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3)
whether the employee took actions to maintain his privacy in the item." These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.44
Thus, where the employee used a password on his computer, did not share his office with co-workers and kept
the same locked, he had a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment.45
We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of
privacy either in his office or government-issued computer which contained his personal files. Petitioner did not
allege that he had a separate enclosed office which he did not share with anyone, or that his office was always
locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted
any means to prevent other employees from accessing his computer files. On the contrary, he submits that
being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends,
associates and even unknown people, whom he even allowed to use his computer which to him seemed a
trivial request. He described his office as "full of people, his friends, unknown people" and that in the past 22
years he had been discharging his functions at the PALD, he is "personally assisting incoming clients,
receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna
Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for
himself alone, that in fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that society would recognize as reasonable.
Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims,
such is negated by the presence of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service Commission and may be used only for
legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in the performance of their
respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any given time.
xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of
privacy in anything they create, store, send, or receive on the computer system.

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The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle
the confidential examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or
receive on the computer through the Internet or any other computer network. Users understand that the CSC
may use human or automated means to monitor the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive
use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other
users. However, he is accountable therefor and must insure its care and maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the
computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be
responsible for all transactions made using their passwords. No User may access the computer system with
another Users password or account.
13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode
particular files or messages does not imply that Users have an expectation of privacy in the material they
create or receive on the computer system. The Civil Service Commission has global passwords that permit
access to all materials stored on its networked computer system regardless of whether those materials have
been encoded with a particular Users password. Only members of the Commission shall authorize the
application of the said global passwords.
x x x x47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice that they have no expectation
of privacy in anything they create, store, send or receive on the office computers, and that the CSC may
monitor the use of the computer resources using both automated or human means. This implies that on-thespot inspections may be done to ensure that the computer resources were used only for such legitimate
business purposes.
One of the factors stated in OConnor which are relevant in determining whether an employees expectation of
privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In one case, the US
Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable
expectation of privacy in his computer files where the universitys computer policy, the computer user is
informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is
specifically told that computer files, including e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of Fourth
Amendment rights when university officials conducted a warrantless search of his computer for work-related
materials.49
As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we
answer in the affirmative.
The search of petitioners computer files was conducted in connection with investigation of work-related
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies
in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly
"lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit:

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8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown
sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as,
staff working in another government agency, "selling" cases and aiding parties with pending cases, all done
during office hours and involved the use of government properties;
9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved
in the alleged irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on
the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the
computers of the Public Assistance and Liaison Division (PALD) and Legal Division;
x x x x50
A search by a government employer of an employees office is justified at inception when there are reasonable
grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.51
Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a
government agencys computer use policy prohibited electronic messages with pornographic content and in
addition expressly provided that employees do not have any personal privacy rights regarding their use of the
agency information systems and technology, the government employee had no legitimate expectation of
privacy as to the use and contents of his office computer, and therefore evidence found during warrantless
search of the computer was admissible in prosecution for child pornography. In that case, the defendant
employees computer hard drive was first remotely examined by a computer information technician after his
supervisor received complaints that he was inaccessible and had copied and distributed non-work-related email messages throughout the office. When the supervisor confirmed that defendant had used his computer to
access the prohibited websites, in contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants
were secured by the police department. The initial remote search of the hard drive of petitioners computer, as
well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public
employer can investigate work-related misconduct so long as any search is justified at inception and is
reasonably related in scope to the circumstances that justified it in the first place.52
Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and
scope. We quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it
were with the guidelines established by OConnor:
Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the
Commission that the search of Pollos computer has successfully passed the test of reasonableness for
warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity as a government employer and that it was
undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances
exempted from the warrant requirement. At the inception of the search, a complaint was received recounting
that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the
said regional office or in the Commission. The nature of the imputation was serious, as it was grievously
disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of "lawyering" for
parties with pending cases before the Commission would be a highly repugnant scenario, then such a case
would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of
the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate
as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative
tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not
have any trust and confidence in it.

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Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit
any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a
search was forthwith conducted involving the computer resources in the concerned regional office. That it was
the computers that were subjected to the search was justified since these furnished the easiest means for an
employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting
out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be
destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to
comply with the probable cause requirement would invariably defeat the purpose of the wok-related
investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and
transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity,
were on hand to observe the process until its completion. In addition, the respondent himself was duly notified,
through text messaging, of the search and the concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was
not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of
the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after
the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned
search are deemed admissible.53
Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument
invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987
Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the
privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit
in his contention that OConnor and Simons are not relevant because the present case does not involve a
criminal offense like child pornography. As already mentioned, the search of petitioners computer was justified
there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence
relevant to the investigation being conducted by CSC as government employer of such misconduct subject of
the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in
administrative searches defined in OConnor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk
of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was investigated on
the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to
personal cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided
by NBI agents. The team was able to access Atty. Morales personal computer and print two documents stored
in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila,
both in the name of another lawyer. Atty. Morales computer was seized and taken in custody of the OCA but
was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein.
The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge
against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and
positive statement affirming the charges against Atty. Morales, along with other court personnel also charged
in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The
Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every
court employee, the Court cannot use the evidence obtained from his personal computer against him for it
violated his constitutional right against unreasonable searches and seizures. The Court found no evidence to
support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales,
as in fact the latter immediately filed an administrative case against the persons who conducted the spot
investigation, questioning the validity of the investigation and specifically invoking his constitutional right
against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable,
the Court had no choice but to dismiss the charges against him for insufficiency of evidence.

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The above case is to be distinguished from the case at bar because, unlike the former which involved a
personal computer of a court employee, the computer from which the personal files of herein petitioner were
retrieved is a government-issued computer, hence government property the use of which the CSC has
absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer)
and other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the
existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable
expectation of privacy in the office computer assigned to him.
Having determined that the personal files copied from the office computer of petitioner are admissible in the
administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the
petitioner guilty of the charges and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only
respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such
amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even
if other equally reasonable minds might conceivably opine otherwise.55
The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and
documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it
presented during the formal investigation. According to the CSC, these documents were confirmed to be
similar or exactly the same content-wise with those on the case records of some cases pending either with
CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those
pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given
by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the
cases they handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual
finding regarding the authorship of the subject pleadings and misuse of the office computer is well-supported
by the evidence on record, thus:
It is also striking to note that some of these documents were in the nature of pleadings responding to the
orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari
or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and
willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the
Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal
kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings
was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply
doing the same for the money a "legal mercenary" selling or purveying his expertise to the highest bidder, so
to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that
he was the author thereof. This is because he had a control of the said computer. More significantly, one of the
witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the
case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado
addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly
undermining the interest of the Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the
personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his
counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn
affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution
witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the
computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with
Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question.

242
Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn
statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is
true with the other supporting affidavits, which Pollo submitted.
At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was
unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once
but several times gauging by the number of pleadings, for ends not in conformity with the interests of the
Commission. He was, in effect, acting as a principal by indispensable cooperationOr at the very least, he
should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and
the electricity, to be utilized for purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one
of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person
alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more
sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal pleading
stored in the computer assigned to the respondent, unless he had something to do with it?56
Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since
Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:
Rule II Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course
unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the
proper disciplining authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or
supported by documentary or direct evidence, in which case the person complained of may be required to
comment.
xxxx
We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been
initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the
hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining
authoritys own fact-finding investigation and information-gathering -- found a prima facie case against the
petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of
Appeals57 -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform
Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or
employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering
that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly
acquired. (Emphasis supplied.)
As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC
Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly
anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner
Buenaflors previous memo expressing his dissent to the actions and disposition of the Commission in this
case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision
by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners
Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for
the purpose and further because the CUP being for internal use of the Commission, the practice had been to

243
issue a memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or
which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its
effectivity.59
In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and
violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate
penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and
Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.

244

SALCEDO-ORTANEZ V CA
SECOND DIVISION

G.R. No. 110662

August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon
City and RAFAEL S. ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.
Efren A. Santos for private respondent.

PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of
respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon.
Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a
complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of
lack of marriage license and/or psychological incapacity of the petitioner. The complaint was docketed as Civil
Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over by respondent Judge
Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M".
Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone
conversations between petitioner and unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June 1992; on
the same day, the trial court admitted all of private respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in evidence
of the aforementioned cassette tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition, which in
part reads:
It is much too obvious that the petition will have to fail, for two basic reasons:
(1)
Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in
evidence for certain purposes, depending on how they are presented and offered and on how the trial judge
utilizes them in the interest of truth and fairness and the even handed administration of justice.

245

(2)
A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence
adduced during trial. The ruling on admissibility is interlocutory; neither does it impinge on jurisdiction. If it is
erroneous, the ruling should be questioned in the appeal from the judgment on the merits and not through the
special civil action of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an error
of law, properly correctible by appeal and not by certiorari. Otherwise, we will have the sorry spectacle of a
case being subject of a counterproductive "ping-pong" to and from the appellate court as often as a trial court
is perceived to have made an error in any of its rulings with respect to evidentiary matters in the course of trial.
This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED. 1
From this adverse judgment, petitioner filed the present petition for review, stating:
Grounds for Allowance of the Petition
10.
The decision of respondent [Court of Appeals] has no basis in law nor previous decision of the
Supreme Court.
10.1 In affirming the questioned order of respondent judge, the Court of Appeals has decided a question of
substance not theretofore determined by the Supreme Court as the question of admissibility in evidence of
tape recordings has not, thus far, been addressed and decided squarely by the Supreme Court.
11.
In affirming the questioned order of respondent judge, the Court of Appeals has likewise rendered a
decision in a way not in accord with law and with applicable decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in nature, the same can still be [the] subject of a petition
for certiorari. 2
The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court
was properly availed of by the petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court.
The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal
the grounds for assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not
afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting all of the evidence offered by private
respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These
tape recordings were made and obtained when private respondent allowed his friends from the military to wire
tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the
Privacy of Communication, and for other purposes" expressly makes such tape recordings inadmissible in
evidence. The relevant provisions of Rep. Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. . . .

246
Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the
same or any part thereof, or any information therein contained, obtained or secured by any person in violation
of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative
or administrative hearing or investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in
admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone
conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under
Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a
penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of said Act. 5
We need not address the other arguments raised by the parties, involving the applicability of American
jurisprudence, having arrived at the conclusion that the subject cassette tapes are inadmissible in evidence
under Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The
subject cassette tapes are declared inadmissible in evidence.
SO ORDERED.

247

NAVARRO V CA
SECOND DIVISION
G.R. No. 121087

August 26, 1999

FELIPE NAVARRO, petitioner,

vs.
THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated December 14, 1994,
which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding
petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of
prision mayor, as minimum, and fourteen (14) years and eight (8) months, and (1) day of reclusion temporal,
as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique "Ike" Lingan, from
P30,000.00 to P50,000.00.
The information against petitioner alleged
That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the
Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously
assault one Ike Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged
in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter
when the said victim fell, by banging his head against the concrete pavement, as a consequence of which said
Ike Lingan suffered cerebral concussion and shock which directly caused his death.
The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique
"Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went
to the Entertainment City following reports that it was showing the nude dancers. After the three had seated
themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip
act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.2
At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and
demanded to know why he took a picture.3 Jalbuena replied: "Wala kang pakialam, because this is my job."4
Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.5 When Jalbuena saw
that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.6
Jalbuena and his companions went to the police station to report the matter. Three of the policeman on duty,
including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his
companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident.
In a while, Liquin and Sioco arrived on a motorcycle.7
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes.8
Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: "Putang ina,
kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?"9 Petitioner Navarro then pulled
out his firearm and cocked it, and, pressing it on the face of Jalbuena, said "Ano, uutasin na kita?"10
At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan pumarito kami para
magpa-blotter, I am here to mediate."11 Petitoner Navarro replied: "Walang press, press, mag-sampu pa
kayo."12 He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and
Lingan.13

248
This angered Lingan, who said: "O, di ilagay mo diyan"14 Petitioner Navarro retorted: "Talagang ilalagay
ko."15 The two then had a heated exchange.16 Finally, Lingan said: "Masyado kang abusado, alisin mo yang
baril mo at magsuntukan na lang tayo."17 Petitioner Navarro replied: "Ah, ganoon?"18
As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above the left eyebrow.
Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist
blow on the forehead which floored him.19
Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike Lingan and
naghamon."20 He said to Sgt. Aonuevo: "Ilagay mo diyan sa blotter sa harap ni Alex Sioco at Dante Liquin,
na si Ike Lingan ang naghamon."21 He then poked his gun at the right temple of Jalbuena and made him sign
his name on the blotter.22 Jalbuena could not affix his signature. His right hand was trembling and he simply
wrote his name in print.23
Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan
to the Quezon Memorial Hospital. The station manager of DWTI, Boy, Casaada, arrived and, learning that
Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.24
Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the
deceased.25 The following is an excerpt from the tape recording:
Lingan:

Pare, you are abusing yourself.

Navarro:

Who is that abusing?

Lingan:

I'm here to mediate. Do not include me in the problem. I'm out of the problem.

xxx
Navarro:

xxx

xxx

Wala sa akin yan. Ang kaso lang . . .

Lingan:
Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just
came here to ayusin things. Do not say bad things against me. I'm the number one loko sa media. I'm the best
media man. . . .
Navarro:
loko ka!

Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing

Lingan:

I'm brave also.

Navarro:
Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nagtatrabaho lang ako ng ayon sa serbisyo ko.
Lingan:

You are challenging me and him. . . .

Navarro:
Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong
maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.
Lingan:

Pati ako kalaban ninyo.

Navarro:

Talagang kalaban namin ang press. Lahat, hindi lang ikaw!

Lingan:

You are wrong. Bakit kalaban nyo ang press?

249
Navarro:

Pulis ito! Aba!

Lingan:

Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.

Navarro:

Mayabang ka ah!

(Sounds of a scuffle)
Navarro:
Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko
daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo,
hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley,
hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able
to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the
concrete.26
In giving credence to the evidence for the prosecution, the trial court stated:
After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this
court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that
moral certainty in the mind of the court that accused herein is criminally responsible.
The defense's evidence which consists of outright denial could not under the circumstance overturn the
strength of the prosecution's evidence.
This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make
false accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him
harm or injury.
Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed
account given by Stanley Jalbuena on how Lingan sustained head injuries.
Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that
the head injuries of deceased Lingan were caused by the latter's falling down on the concrete pavement head
first.
The Court of Appeals affirmed:
We are far from being convinced by appellant's aforesaid disquisition. We have carefully evaluated the
conflicting versions of the incident as presented by both parties, and we find the trial court's factual conclusions
to have better and stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a victim of appellant's aggression does not impair the
probative worth of his positive and logical account of the incident in question. In fact, far from proving his
innocence, appellant's unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly
betrays his violent character or disposition and his capacity to harm others. Apparently, the same motivation
that led him into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for
Jalbuena and humiliated him and further challenged to a fist fight.1wphi1.nt
xxx

xxx

xxx

On the other hand, appellant's explanation as how Lingan was injured is too tenuous and illogical to be
accepted. It is in fact contradicted by the number, nature and location of Lingan's injuries as shown in the post-

250
mortem report (Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the
course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow,
between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E.). Certainly,
these injuries could not have been resulted from Lingan's accidental fall.
Hence, this appeal. Petitioner Navarro contends:
THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND
WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING
BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY
MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS
JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY
EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD.
The appeal is without merit.
First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a
biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction
of the accused is not, for this reason alone, unreliable.27 Trial courts, which have the opportunity observe the
facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine
whether his or her testimony should be given credence.28 In the instant case, petitioner Navarro has not
shown that the trial court erred in according weight to the testimony of Jalbuena.
Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be asked whether the tape
is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law
provides:
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device commonly known as dictaphone or
dictagraph of dectectaphone or walkie-talkie or tape-recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record,
or copies thereof, of any communication or spoken word secured either before or after the effective date of this
Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to
communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether
complete or partial, to any other person: Provided, That the use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be
covered by this prohibition.
xxx

xxx

xxx

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning
of the same or any part thereof, or any information therein contained obtained or secured by any person in
violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29 Since the
exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited.
Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of
a witness (1) that he personally recorded the conversations; (2) that the tape played in the court was the one
he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong.30 In the

251
instant case, Jalbuena testified that he personally made the voice recording;31 that the tape played in the court
was the one he recorded;32 and that the speakers on the tape were petitioner Navarro and Lingan.33 A
sufficient foundation was thus laid for the authentication of the tape presented by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between
petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2)
that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of
it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the medical
certificate,34 dated February 5, 1990, containing the following findings:
Post Mortem Findings:
= Dried blood, forehead & face
= No blood oozed from the ears, nose & mouth
= Swelling, 3 cm x 2 cm, temporal region, head, right
= Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left
= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left
= Cyanosis of the tips of fingers & toes
CAUSE OF DEATH:
= CEREBRAL CONCUSSION & SHOCK
= BLOW ON THE HEAD
Dr. Yamamato testified:
Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood
from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1.?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under your findings No. 2 doctor?
WITNESS:

252

It may be caused by bumping to a hard object, sir.

Q Could a butt of a gun have caused it doctor?
A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small,
sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.
Q And findings No. 5 what could have caused it?
A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing sir.
Q How about the last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:
In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral
concussion and Shock, will you explain it?
A Cerebral concussion means in Tagalog "naalog ang utak" or jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir.
Q Could any one of both caused the death of the victim?
A Yes, sir.
Q Could cerebral concussion alone have caused the death of the deceased?
A May be, sir.
FISCAL:
Which of these two more likely, to cause death?
WITNESS:

253

Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier sir.
xxx

xxx

xxx

FISCAL:
Could a bumping or pushing of one's head against a concrete floor have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.35
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle
of his pistol above the left eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstances of sufficient provocation or threat on the part of the
offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro.
Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting,
inciting or irritating anyone.36 The provocation must be sufficient and should immediately precede the act.37
To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be
proportionate in gravity.38 And it must immediately precede the act so much so that there is no interval
between the provocation by the offended party and the commission of the crime by the accused.39
In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted
sufficient provocation. In People v. Macaso,40 we appreciated this mitigating circumstance in favor of the
accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words.
Hence, this mitigating circumstance should be considered in favor of petitioner Navarro.
Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that
committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after
the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this
mitigating circumstance should be taken into account in determining the penalty that should be imposed on
petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability
shall be incurred by any person committing a felony although the wrongful act done be different from that which
he intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a wrong
as that committed was appreciated in favor of the accused while finding him guilty of homicide.
However, the aggravating circumstance of commission of a crime in a place where the public authorities are
engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this
case was committed right in the police station where policemen were discharging their public functions.43
The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty
under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances
and one aggravating circumstances, the penalty should be fixed in its minimum period.44 Applying the
Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the

254
minimum of which is within the range of the penalty next lower degree, i.e., prision mayor, and the maximum of
which is reclusion temporal in its minimum period.45
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with the
current jurisprudence.46
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe
Navarro is hereby SENTENCED to suffer a prison terms of 18 years of prision mayor, as minimum, to 14 years
and 8 months of reclusion temporal, as maximum.
SO ORDERED.1wphi1.nt

255

RAMIREZ V CA
FIRST DIVISION

G.R. No. 93833

September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City
alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages,
attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests
and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was
culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi)

Good Afternoon M'am.

Defendant Ester S. Garcia (ESG)

Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka

napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.
CHUCHI
ESG

CHUCHI

Kasi, naka duty ako noon.

Tapos iniwan no. (Sic)

Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon

ESG
Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa
review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.
CHUCHI

Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG
Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union
kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own
makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI
ESG

Itutuloy ko na M'am sana ang duty ko.

Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG
Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko
naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.
CHUCHI

Kumuha kami ng exam noon.

256

ESG

CHUCHI
ESG

CHUCHI

Oo, pero hindi ka papasa.

Eh, bakit ako ang nakuha ni Dr. Tamayo

Kukunin ka kasi ako.

Eh, di sana

ESG
Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito
kung hindi ako.
CHUCHI

Mag-eexplain ako.

ESG
Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putangina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.
ESG
Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok,
okey yan nasaloob ka umalis ka doon.
CHUCHI

Kasi M'am, binbalikan ako ng mga taga Union.

ESG
Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako.
Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI
ESG

CHUCHI
ESG
ka. 3

Ina-ano ko m'am na utang na loob.

Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

Paano kita nilapastanganan?

Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City
for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related
violations of private communication, and other purposes." An information charging petitioner of violation of the
said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200,
committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the
jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by
Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate
in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.

257

MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the
facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the
trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an
offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a
communication by a person other than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court,
which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19,
1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's
order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing
the information based on the ground that the facts alleged do not constitute an offense, the respondent judge
acted in grave abuse of discretion correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of
Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act
4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She
contends that the provision merely refers to the unauthorized taping of a private conversation by a party other
than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of
the conversation must be alleged in the Information, otherwise the facts charged would not constitute a
violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private
communication," not a "private conversation" and that consequently, her act of secretly taping her conversation
with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of a statute
is clear and unambiguous, the law is applied according to its express terms, and interpretation would be
resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an
injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations
of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the
parties to any private communication to secretly record such communication by means of a tape recorder. The
law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other
than or different from those involved in the private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as
respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his

258
private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this
provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in
enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by third persons. Thus:
xxx

xxx

xxx

Senator Taada:

That qualified only "overhear".

Senator Padilla:
So that when it is intercepted or recorded, the element of secrecy would not appear to
be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and
involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases
or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in
an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even
subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording,
would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside?
Senator Taada:

That is covered by the purview of this bill, Your Honor.

Senator Padilla:
Even if the record should be used not in the prosecution of offense but as evidence to be
used in Civil Cases or special proceedings?
Senator Taada:
That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.
Senator Padilla:

Now, would that be reasonable, your Honor?

Senator Taada:
I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your
honor, is to record the intention of the parties. I believe that all the parties should know that the observations
are being recorded.
Senator Padilla:

This might reduce the utility of recorders.

Senator Taada:
Well no. For example, I was to say that in meetings of the board of directors where a
tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose
remarks and observations are being made should know that the observations are being recorded.
Senator Padilla:

Now, I can understand.

Senator Taada:
That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite
of that warning, he makes damaging statements against his own interest, well, he cannot complain any more.
But if you are going to take a recording of the observations and remarks of a person without him knowing that it
is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it
is unfair.
xxx

xxx

xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

259
Senator Diokno:
Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech is public,
but the recording is done secretly.
Senator Taada:
Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person not between a speaker and a public.
xxx

xxx

xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx

xxx

xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations
from the Congressional Record, therefore plainly supports the view held by the respondent court that the
provision seeks to penalize even those privy to the private communications. Where the law makes no
distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same
need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly
overhearing, intercepting or recording private communications by means of the devices enumerated therein.
The mere allegation that an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed
out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can
be regarded as a violator, the nature of the conversation, as well as its communication to a third person should
be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not
include "private conversations" narrows the ordinary meaning of the word "communication" to a point of
absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In
its ordinary signification, communication connotes the act of sharing or imparting signification, communication
connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings
or thoughts are shared between individuals through a common system of symbols (as language signs or
gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive
communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on
February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts
about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the
fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his
Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard. But this
statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized
people have some aspects of their lives they do not wish to expose. Free conversations are often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of
views not intended to be taken seriously. The right to the privacy of communication, among others, has
expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have
recognized the nature of conversations between individuals and the significance of man's spiritual nature, of
his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to
be found in the unaudited, and free exchange of communication between individuals free from every
unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we
held that the use of a telephone extension for the purpose of overhearing a private conversation without
authorization did not violate R.A. 4200 because a telephone extension devise was neither among those

260
"device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be
construed strictly in favor of the accused." 20 The instant case turns on a different note, because the
applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the
statute itself explicitly mentions the unauthorized "recording" of private communications with the use of taperecorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with
no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against
petitioner.
SO ORDERED.

261

OPLE V TORRES
EN BANC

G.R. No. 127685

July 23, 1998

BLAS F. OPLE, petitioner,

vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD
OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the
right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and
the right most valued by civilized men." 1 Petitioner Ople prays that we invalidate Administrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional
grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on
our citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated by the
petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently
transact business with basic service and social security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic
services on social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services and social security
providing agencies and other government intrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers
vested in me by law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized
Identification Reference System among the key basic services and social security providers is hereby
established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of the System is hereby created, chaired by the
Executive Secretary, with the following as members:
Head, Presidential Management Staff

262

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and
as such shall provide administrative and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve
as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat
shall coordinate with the different Social Security and Services Agencies to establish the standards in the use
of Biometrics Technology and in computer application designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination
with the National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall
undertake a massive tri-media information dissemination campaign to educate and raise public awareness on
the importance and use of the PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the
respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of
the President through the IACC, on the status of implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and NinetySix.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23,
1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating
Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary
restraining order enjoining its implementation.
Petitioner contends:
A.
THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE
LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

263
B.
THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF
A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C.
THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A.
THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL
REVIEW;
B.
A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF
THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C.
THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE
SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;
D.

A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3

We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of
the petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no
legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our
Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the
issuance of A.O. No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the Government
Service Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of public funds
and the misuse of GSIS funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing rules of
A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as
infirmed on its face. His action is not premature for the rules yet to be promulgated cannot cure its fatal defects.
Moreover, the respondents themselves have started the implementation of A.O. No. 308 without waiting for the
rules. As early as January 19, 1997, respondent Social Security System (SSS) caused the publication of a
notice to bid for the manufacture of the National Identification (ID) card. 6 Respondent Executive Secretary
Torres has publicly announced that representatives from the GSIS and the SSS have completed the guidelines
for the national identification system. 7 All signals from the respondents show their unswerving will to
implement A.O. No. 308 and we need not wait for the formality of the rules to pass judgment on its
constitutionality. In this light, the dissenters insistence that we tighten the rule on standing is not a
commendable stance as its result would be to throttle an important constitutional principle and a fundamental
right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a
law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system
of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.

264
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed.
Hence, the exercise by one branch of government of power belonging to another will be given a stricter
scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority,
under the Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as the will of the
people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the
Philippines. 9 The grant of legislative power to Congress is broad, general and comprehensive. 10 The
legislative body possesses plenary power for all purposes of civil government. 11 Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere. 12 In fine, except as limited by the Constitution, either expressly or impliedly, legislative power
embraces all subjects and extends to matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the President executes the laws. 14 The executive
power is vested in the Presidents. 15 It is generally defined as the power to enforce and administer the laws.
16 It is the power of carrying the laws into practical operation and enforcing their due observance. 17
As head of the Executive Department, the President is the Chief Executive. He represents the government as
a whole and sees to it that all laws are enforced by the officials and employees of his department. 18 He has
control over the executive department, bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office or interfere with the discretion of its
officials. 19 Corollary to the power of control, the President also has the duty of supervising the enforcement of
laws for the maintenance of general peace and public order. Thus, he is granted administrative power over
bureaus and offices under his control to enable him to discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and enforcing orders as determined by
proper governmental organs. 21 It enables the President to fix a uniform standard of administrative efficiency
and check the official conduct of his agents. 22 To this end, he can issue administrative orders, rules and
regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be
covered by an administrative order. An administrative order is:
Sec. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental
operation in pursuance of his duties as administrative head shall be promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President which relates to specific aspects in the
administrative operation of government. It must be in harmony with the law and should be for the sole purpose
of implementing the law and carrying out the legislative policy. 24 We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural principles of governance."
25 and "embodies changes in administrative structure and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the
Office of the President, Book IV on the Executive Branch, Book V on Constitutional Commissions, Book VI on
National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions
on the organization, powers and general administration of the executive, legislative and judicial branches of
government, the organization and administration of departments, bureaus and offices under the executive
branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the
rules on the national government budget, as well as guideline for the exercise by administrative agencies of
quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government,

265
i.e, internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized Identification Reference System. Such a System requires
a delicate adjustment of various contending state policies the primacy of national security, the extent of
privacy interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr.
Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said
administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as
the line that separates the administrative power of the President to make rules and the legislative power of
Congress, it ought to be evident that it deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no right,
imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308, a citizen cannot transact
business with government agencies delivering basic services to the people without the contemplated
identification card. No citizen will refuse to get this identification card for no one can avoid dealing with
government. It is thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the contention that A.O. No. 308 gives no right and imposes no duty
cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and
consequently erodes the plenary power of Congress to make laws. This is contrary to the established
approach defining the traditional limits of administrative legislation. As well stated by Fisher: ". . . Many
regulations however, bear directly on the public. It is here that administrative legislation must he restricted in its
scope and application. Regulations are not supposed to be a substitute for the general policy-making that
Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the
authority to prescribe rules and regulations is not an independent source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional
muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is
the "right to be let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States Supreme Court
gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held
that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and
Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that
help give them life and substance . . . various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is
another facet of that privacy. The Fourth Amendment explicitly affirms the ''right of the people to be secure in
their persons, houses and effects, against unreasonable searches and seizures." The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him
to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a constitutional right to
privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:
xxx

xxx

xxx

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offence
on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons;

266
rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental
constitutional guarantees." It has wider implications though. The constitutional right to privacy has come into its
own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof.
Emerson is particularly apt: "The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this private sector protection, in other words, of the dignity
and integrity of the individual has become increasingly important as modern society has developed. All the
forces of a technological age industrialization, urbanization, and organization operate to narrow the area
of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in
several provisions of our Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of
the court, or when public safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
xxx

xxx

xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health as may be provided by law.
xxx

xxx

xxx

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.
Sec. 17.

No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very
person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons"
and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another.
35 It also holds a public officer or employee or any private individual liable for damages for any violation of the
rights and liberties of another person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of secrets by an officer, 38 the
revelation of trade and industrial secrets, 39 and trespass to dwelling. 40 Invasion of privacy is an offense in

267
special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual
Property Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of certain
information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed
by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some
compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1)
the need to provides our citizens and foreigners with the facility to conveniently transact business with basic
service and social security providers and other government instrumentalities and (2) the need to reduce, if not
totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is
debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is
not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put
our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a
"common reference number to establish a linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a mathematical
analysis of biological data." 45 The term "biometrics" has evolved into a broad category of technologies which
provide precise confirmation of an individual's identity through the use of the individual's own physiological and
behavioral characteristics. 46 A physiological characteristic is a relatively stable physical characteristic such as
a fingerprint, retinal scan, hand geometry or facial features. A behavioral characteristic is influenced by the
individual's personality and includes voice print, signature and keystroke. 47 Most biometric idenfication
systems use a card or personal identificatin number (PIN) for initial identification. The biometric measurement
is used to verify that the individual holding the card or entering the PIN is the legitimate owner of the card or
PIN. 48
A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns
the unique pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in
computer data banks 49 and becomes a means of identifying an individual using a service. This technology
requires one's fingertip to be scanned every time service or access is provided. 50 Another method is the
retinal scan. Retinal scan technology employs optical technology to map the capillary pattern of the retina of
the eye. This technology produces a unique print similar to a finger print. 51 Another biometric method is
known as the "artificial nose." This device chemically analyzes the unique combination of substances excreted
from the skin of people. 52 The latest on the list of biometric achievements is the thermogram. Scientists have
found that by taking pictures of a face using infra-red cameras, a unique heat distribution pattern is seen. The
different densities of bone, skin, fat and blood vessels all contribute to the individual's personal "heat
signature." 53
In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science
facts. Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science
that uses various technologies in encoding any and all biological characteristics of an individual for
identification. It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what
particular biometrics technology shall be used to identify people who will seek its coverage. Considering the
banquest of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy
of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding
of data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims
that the adoption of the Identification Reference System will contribute to the "generation of population data for
development planning." 54 This is an admission that the PRN will not be used solely for identification but the
generation of other data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the

268
indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information
for a purpose other than the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as the
dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals
with a government agency to avail of basic services and security. His transactions with the government agency
will necessarily be recorded whether it be in the computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments, income tax returns, statement of assets and
liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the
better the chance of building a huge formidable informatin base through the electronic linkage of the files. 55
The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir
of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of
our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic
personal infomation about the individual. 57 Even that hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell us in clear and categorical terms how these information
gathered shall he handled. It does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the
integrity of the information. 58 Well to note, the computer linkage gives other government agencies access to
the information. Yet, there are no controls to guard against leakage of information. When the access code of
the control programs of the particular computer system is broken, an intruder, without fear of sanction or
penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the
system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered
about our people will only be processed for unequivocally specified purposes. 60 The lack of proper
safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it may also enable unscrupulous persons to access
confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing
expeditions" by government authorities and evade the right against unreasonable searches and seizures. 61
The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when
we consider that the individual lacks control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. 62 They threaten the very abuses that the Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual
and transmit it over a national network is one of the most graphic threats of the computer revolution. 64 The
computer is capable of producing a comprehensive dossier on individuals out of information given at different
times and for varied purposes. 65 It can continue adding to the stored data and keeping the information up to
date. Retrieval of stored date is simple. When information of a privileged character finds its way into the
computer, it can be extracted together with other data on the subject. 66 Once extracted, the information is
putty in the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to
the right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture.
The Court will not be true to its role as the ultimate guardian of the people's liberty if it would not immediately
smother the sparks that endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with
regard to the Natioal ID and the use of biometrics technology as it stands on quicksand. The reasonableness
of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has
exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as
reasonable. 67 The factual circumstances of the case determines the reasonableness of the expectation. 68
However, other factors, such as customs, physical surroundings and practices of a particular activity, may

269
serve to create or diminish this expectation. 69 The use of biometrics and computer technology in A.O. No. 308
does not assure the individual of a reasonable expectation of privacy. 70 As technology advances, the level of
reasonably expected privacy decreases. 71 The measure of protection granted by the reasonable expectation
diminishes as relevant technology becomes more widely accepted. 72 The security of the computer data file
depends not only on the physical inaccessibility of the file but also on the advances in hardware and software
computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation
of privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations merely
implement the policy of the law or order. On its face, A.O. No. gives the IACC virtually infettered discretion to
determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy. Commonwealth
Act. No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO with
imprisonment and fine. 73 Republic Act. No. 1161 prohibits public disclosure of SSS employment records and
reports. 74 These laws, however, apply to records and data with the NSO and the SSS. It is not clear whether
they may be applied to data with the other government agencies forming part of the National ID System. The
need to clarify the penal aspect of A.O. No. 308 is another reason why its enactment should be given to
Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the
rational relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up
the implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and
(3) generate population data for development planning. He cocludes that these purposes justify the incursions
into the right to privacy for the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A. 3019, the
Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling
a public officer to make an annual report disclosing his assets and liabilities, his sources of income and
expenses, did not infringe on the individual's right to privacy. The law was enacted to promote morality in
public administration by curtailing and minimizing the opportunities for official corruption and maintaining a
standard of honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative
order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. IN the case at bar, A.O. No. 308 may have been
impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we
now hod that when the integrity of a fundamental right is at stake, this court will give the challenged law,
administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the
presumption of regularity in the performance of official duties. Nor is it enough for the authorities to prove that
their act is not irrational for a basic right can be diminished, if not defeated, even when the government does
not act irrationally. They must satisfactorily show the presence of compelling state interests and that the law,
rule or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution
whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the
least we can do is to lean towards the stance that will not put in danger the rights protected by the
Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the United States
Supreme Court was presented with the question of whether the State of New York could keep a centralized
computer record of the names and addresses of all persons who obtained certain drugs pursuant to a doctor's
prescription. The New York State Controlled Substance Act of 1972 required physicians to identify parties
obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but with a
potential for abuse, so that the names and addresses of the patients can be recorded in a centralized computer
file of the State Department of Health. The plaintiffs, who were patients and doctors, claimed that some people

270
might decline necessary medication because of their fear that the computerized data may be readily available
and open to public disclosure; and that once disclosed, it may stigmatize them as drug addicts. 80 The
plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e., the individual interest
in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of
important decisions. The U.S. Supreme Court held that while an individual's interest in avoiding disclosuer of
personal matter is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a
constitutional violation. The Court found that the statute was necessary to aid in the enforcement of laws
designed to minimize the misuse of dangerous drugs. The patient-identification requirement was a product of
an orderly and rational legislative decision made upon recommmendation by a specially appointed commission
which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and contained
numerous safeguards against indiscriminate disclosure. The statute laid down the procedure and requirements
for the gathering, storage and retrieval of the informatin. It ebumerated who were authorized to access the
data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of these
safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police power.
As we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the use of
computers to accumulate, store, process, retvieve and transmit data to improve our bureaucracy. Computers
work wonders to achieve the efficiency which both government and private industry seek. Many information
system in different countries make use of the computer to facilitate important social objective, such as better
law enforcement, faster delivery of public services, more efficient management of credit and insurance
programs, improvement of telecommunications and streamlining of financial activities. 81 Used wisely, data
stored in the computer could help good administration by making accurate and comprehensive information for
those who have to frame policy and make key decisions. 82 The benefits of the computer has revolutionized
information technology. It developed the internet, 83 introduced the concept of cyberspace 84 and the
information superhighway where the individual, armed only with his personal computer, may surf and search all
kinds and classes of information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual
privacy. The right is not intended to stifle scientific and technological advancements that enhance public
service and the common good. It merely requires that the law be narrowly focused 85 and a compelling interest
justify such intrusions. 86 Intrusions into the right must be accompanied by proper safeguards and well-defined
standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual
privacy will be subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v.
Mutuc, to wit:
The concept of limited government has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed one of the basic disctinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector protection, in other words, of the dignity and integrity of the individual has
become increasingly important as modern society has developed. All the forces of a technological age
industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion
into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society. 87
IV
The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate
from various sources governments, journalists, employers, social scientists, etc. 88 In th case at bar, the
threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of
basic services. Given the record-keeping power of the computer, only the indifferent fail to perceive the danger

271
that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting
citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that
because of its record-keeping, the society will have lost its benign capacity to forget." 89 Oblivious to this
counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right.
We close with the statement that the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" declared null and void for being unconstitutional.
SO ORDERED.

272

MARQUEZ V DESIERTO
EN BANC
G.R. No. 135882

June 27, 2001

LOURDES T. MARQUEZ, in her capacity as Branch Manager, UNION BANK OF THE PHILIPPINES,
petitioner,
vs.
HONORABLE ANIANO A. DESIERTO, in his capacity as OMBUDSMAN, ANGEL C. MAYOR-ALGO, JR.,
MARY ANN CORPUZ-MANALAC AND JOSE T. DE JESUS, JR., in their capacity as Chairman and Members
of the Panel, respectively, respondents.
PARDO, J.:
In the petition at bar, petitioner seeks to -a. Annul and set aside, for having been issued without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction, respondents' order dated September 7, 1998 in OMB-0-97-0411, In
Re: Motion to Cite Lourdes T. Marquez for indirect contempt, received by counsel of September 9,1998, and
their order dated October 14,1998, denying Marquez's motion for reconsideration dated September 10, 1998,
received by counsel on October 20, 1998.
b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding with the hearing
of the motion to cite Marquez for indirect contempt, through the issuance by this Court of a temporary
restraining order and/or preliminary injunction.1
The antecedent facts are as follows:
Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated
April 29, 1998, to produce several bank documents for purposes of inspection in camera relative to various
accounts maintained at Union Bank of the Philippines, Julia Vargas Branch, where petitioner is the branch
manager. The accounts to be inspected are Account Nos. 011-37270, 240-020718, 245-30317-3 and 24530318-1, involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau
(FFIB) v. Amado Lagdameo, et al. The order further states:
"It is worth mentioning that the power of the Ombudsman to investigate and to require the production and
inspection of records and documents is sanctioned by the 1987 Philippine Constitution, Republic Act No. 6770,
otherwise known as Ombudsman Act of 1989 and under existing jurisprudence on the matter. It must be noted
that R.A. 6770 especially Section 15 thereof provides, among others, the following powers, functions and
duties of the Ombudsman, to wit:
xxx
(8) Administer oaths, issue subpoena duces tecum and take testimony in any investigation or inquiry, including
the power to examine and have access to banks accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the
same penalties provided therein.
Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank
Deposits (R.A.1405) and places the office of the Ombudsman in the same footing as the courts of law in this
regard."2

273
The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail managers checks
purchased by one George Trivinio, a respondent in OMB-097-0411, pending with the office of the
Ombudsman.
It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for a total amount
of P272.1 Million at Traders Royal Bank, United Nations Avenue branch, on May 2 and 3, 1995. Out of the 51
MCs, eleven (11) MCs in the amount of P70.6 million, were deposited and credited to an account maintained at
the Union Bank, Julia Vargas Branch.3
On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and Atty. Fe B.
Macalino at the bank's main office, Ayala Avenue, Makati City. The meeting was for the purpose of allowing
petitioner and Atty. Macalino to view the checks furnished by Traders Royal Bank. After convincing themselves
of the veracity of the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the Ombudsman.
Petitioner agreed to an in camera inspection set on June 3, 1998.4
However, on June 4,1998, petitioner wrote the Ombudsman explaining to him that the accounts in question
cannot readily be identified and asked for time to respond to the order. The reason forwarded by the petitioner
was that "despite diligent efforts and from the accounts numbers presented, we can not identify these accounts
since the checks are issued in cash or bearer. We surmised that these accounts have long been dormant,
hence are not covered by the new account number generated by the Union Bank system. We therefore have to
verify from the Interbank records archives for the whereabouts of these accounts.5
The Ombudsman, responding to the request of the petitioner for time to comply with the order, stated: "firstly, it
must be emphasized that Union Bank, Julia Vargas Branch was depositary bank of the subject Traders Royal
Bank Manager's Check (MCs), as shown at its dorsal portion and as cleared by the Philippines Clearing
House, not the International Corporate Bank.
Notwithstanding the facts that the checks were payable to cash or bearer, nonetheless, the name of the
depositor(s) could easily be identified since the account numbers x x x where said checks were deposited are
identified in the order.
Even assuming that the accounts xxx were already classified as "dormant accounts," the bank is still required
to preserve the records pertaining to the accounts within a certain period of time as required by existing
banking rules and regulations.
And finally, the in camera inspection was already extended twice from May 13, 1998 to June 3,1998 thereby
giving the bank enough time within which to sufficiently comply with the order."6
Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the bank documents
relative to accounts in issue. The order states:
Viewed from the foregoing, your persistent refusal to comply with Ombudsman's order in unjustified, and is
merely intended to delay the investigation of the case. Your act constitutes disobedience of or resistance to a
lawful order issued by this office and is punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The
same may also constitute obstruction in the lawful exercise of the functions of the Ombudsman which is
punishable under Section 36 of R.A. 6770.7
On July 10,1998, petitioner together with Union Bank of the Philippines, filed a petition for declaratory relief,
prohibition and injunctions8 with the Regional Trial Court, Makati City, against the Ombudsman.
The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a declaration of
her rights from the court due to the clear conflict between RA No.6770, Section 15 and R.A. No. 1405,
Sections 2 and 3.

274
Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and the other persons
acting under his authority were continuously harassing her to produce the bank documents relatives to the
accounts in question. Moreover, on June 16, 1998, the Ombudsman issued another order stating that unless
petitioner appeared before the FFIB with the documents requested, petitioner manager would be charged with
indirect contempt and obstruction of justice.
In the meantime,9 on July 14, 1998, the lower court denied petitioner's prayer for a temporary restraining order
and stated us:
"After hearing the arguments of the parties, the court finds the application for a Temporary Restraining Order to
be without merit.
"Since the application prays for restraint of the respondent, in the exercise of his contempt powers under
Section 15(9) in relation to paragraph (8) of RA. 6770, known as " The Ombudsman Act of 1989", there is no
great or irreparable injury from which petitioners may suffer, if respondent is not so restrained. Respondent
should he decide to exercise his contempt powers would still have to apply with the court. x x x Anyone who,
without lawful excuse x x x refuses to produce documents for inspection, when thereunto lawfully required shall
be subject to discipline as in case of contempt of Court and upon application of the individual or body
exercising the power in question shall be dealt with by the Judge of the First Instance (now RTC) having
jurisdiction of the case in a manner provided by the law (section 580 of the Revised Administrative Code).
Under the present Constitution only judges may issue warrants, hence, respondent should apply with the Court
for the issuance of the warrant needed for the enforcement of his contempt orders. It is in these proceedings
where petitioner may question the propriety of respondent's exercise of his contempt powers. Petitioners are
not therefore left without any adequate remedy.
"The questioned orders were issued with the investigation of the case of Fact-Finding and Intelligence Bureau
vs. Amado Lagdameo, et. al., OMB-0-97-0411, for violation of RA. 3019. Since petitioner failed to show prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the
Ombudsman, no writ of injunction may be issued by this Court to delay this investigation pursuant to section 14
of Ombudsman Act of 1989."10
On July 20,1998, petitioner filed a motion for reconsideration based on the following grounds:
a. Petitioners' application for filed Temporary Restraining Order is not only to restrain the Ombudsman from
exercising his contempt powers, but to stop him from implementing his Orders dated April 29, 1998 and June
16, 1998: and
b. The subject matter of the investigation being conducted by the Ombudsman at petitioners' premises is
outside his jurisdiction.11
On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory relief12 on the ground
that the Regional Trial Court has no jurisdiction to hear a petition for relief from the findings and orders of the
Ombudsman, citing R.A. No. 6770, Sections 14 and 27. On August 7, 1998, the Ombudsman filed an
opposition to petitioner's motion for reconsideration dated July 20, 1998.13
On August 19,1998, the lower court denied petitioner's motion for reconsideration,14 and also the
Ombudsman's motion to dismiss. 15
On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of
the Ombudsman by Agapito B. Rosales, Director, Fact Finding and Intelligence Bureau (FFIB).16
On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt
on the ground that the filing thereof was premature due to the petition pending in the lower court.17 Petitioner
likewise reiterated that she had no intention to disobey the orders of the Ombudsman. However, she wanted to

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be clarified as to how she would comply with the orders without her breaking any law, particularly RA. No.
1405.18
Respondent Ombudsman panel set the incident for hearing on September 7, 1998.19 After hearing, the panel
issued an order dated September 7, 1998, ordering petitioner and counsel to appear for a continuation of the
hearing of the contempt charges against her.20
On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of the above
order.21 Her motion was premised on the fact that there was a pending case with the Regional Trial Court,
Makati City,22 which would determine whether obeying the orders of the Ombudsman to produce bank
documents would not violate any law.
The FFIB opposed the motion,23 and on October 14, 1998, the Ombudsman denied the motion by order the
dispositive portion of which reads:
"Wherefore, respondent Lourdes T. Marquez's motion for reconsideration is hereby DENIED, for lack of merit.
Let the hearing of the motion of the Fact Finding Intelligence Bureau (FFIB) to cite her for indirect contempt to
be intransferrably set to 29 October 1998 at 2:00 o'clock p.m. at which date and time she should appear
personally to submit her additional evidence. Failure to do so shall be deemed a waiver thereof."24
Hence, the present petition.25
The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents
requested by the Ombudsman. And whether the order of the Ombudsman to have an in camera inspection of
the questioned account is allowed as an exception to the law on secrecy of bank deposits (R.A. No.1405).
An examination of the secrecy of bank deposits law (R.A. No.1405) would reveal the following exceptions:
1. Where the depositor consents in writing;
2. Impeachment case;
3. By court order in bribery or dereliction of duty cases against public officials;
4. Deposit is subject of litigation;
5. Sec. 8, R.A. No.3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco.26
The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of
the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the Ombudsman
against Amado Lagdameo, et. al. for violation of R.A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture
Agreement between the Public Estates Authority and AMARI.
We rule that before an in camera inspection may be allowed, there must be a pending case before a court of
competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject
matter of the pending case before the court of competent jurisdiction. The bank personnel and the account
holder must be notified to be present during the inspection, and such inspection may cover only the account
identified in the pending case.
In Union Bank of the Philippines v. Court of Appeals, we held that "Section 2 of the Law on Secrecy of Bank
Deposits, as amended, declares bank deposits to be "absolutely confidential" except:
(1) In an examination made in the course of a special or general examination of a bank that is specifically
authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank

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fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to
establish such fraud or irregularity,
(2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided
that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the
bank,
(3) Upon written permission of the depositor,
(4) In cases of impeachment,
(5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or
(6) In cases where the money deposited or invested is the subject matter of the litigation".27
In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is
an investigation by the Office of the Ombudsman. In short, what the office of the ombudsman would wish to do
is to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly,
there was no pending case in court which would warrant the opening of the bank account for inspection.
Zone of privacy are recognized and protected in our laws. The Civil Code provides that" [e]very person shall
respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes
as actionable torts several acts for meddling and prying into the privacy of another. It also holds public officer
or employee or any private individual liable for damages for any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other private communications. The Revised Penal Code
makes a crime of the violation of secrets by an officer, revelation of trade and industrial secrets, and trespass
to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank
Deposits Act, and the Intellectual Property Code.28
IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and desist from requiring
Union Bank Manager Lourdes T. Marquez, or anyone in her place to comply with the order dated October
14,1998, and similar orders. No costs.
SO ORDERED . 1wphi1.nt

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KMU V NEDA
EN BANC
G.R. No. 167798

April 19, 2006

KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLUKMU), JOSELITO V. USTAREZ, EMILIA P. DAPULANG, SALVADOR T. CARRANZA, MARTIN T.
CUSTODIO, JR. and ROQUE M. TAN, Petitioners,
vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT AUTHORITY, and THE SECRETARY,
DEPARTMENT OF BUDGET and MANAGEMENT, Respondents.
x-----------------------------------x
G.R. No. 167930

April 19, 2006

BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A. CASIO, and JOEL G. VIRADOR,
GABRIELA WOMENS PARTY Representative LIZA L. MAZA, ANAKPAWIS Representatives RAFAEL V.
MARIANO and CRISPIN B. BELTRAN, Rep. FRANCIS G. ESCUDERO, Rep. EDUARDO C. ZIALCITA, Rep.
LORENZO R. TAADA III, DR. CAROL PAGADUAN-ARAULLO and RENATO M. REYES, JR. of BAYAN,
MARIE HILAO-ENRIQUEZ of KARAPATAN, ANTONIO L. TINIO of ACT, FERDINAND GAITE of COURAGE,
GIOVANNI A. TAPANG of AGHAM, WILFREDO MARBELLA GARCIA, of KMP, LANA LINABAN of
GABRIELA, AMADO GAT INCIONG, RENATO CONSTANTINO, JR., DEAN PACIFICO H. AGABIN, SHARON
R. DUREMDES of the NATIONAL COUNCIL OF CHURCHES IN THE PHILIPPINES, and BRO. EDMUNDO L.
FERNANDEZ (FSC) of the ASSOCIATION OF MAJOR RELIGIOUS SUPERIORS OF THE PHILIPPINES
(AMRSP), Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, ROMULO NERI, in his capacity as DirectorGeneral of the NATIONAL ECONOMIC and DEVELOPMENT AUTHORITY (NEDA) and the Administrator of
the NATIONAL STATISTICS OFFICE (NSO), Respondents.
DECISION
CARPIO, J.:
This case involves two consolidated petitions for certiorari, prohibition, and mandamus under Rule 65 of the
Rules of Court, seeking the nullification of Executive Order No. 420 (EO 420) on the ground that it is
unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND CONTROLLED
CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR IDENTIFICATION (ID) SYSTEMS, AND
AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR-GENERAL, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY TO IMPLEMENT THE SAME, AND FOR OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have created unnecessary and costly
redundancies and higher costs to government, while making it inconvenient for individuals to be holding
several identification cards;

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WHEREAS, there is urgent need to streamline and integrate the processes and issuance of identification cards
in government to reduce costs and to provide greater convenience for those transacting business with
government;
WHEREAS, a unified identification system will facilitate private businesses, enhance the integrity and reliability
of government-issued identification cards in private transactions, and prevent violations of laws involving false
names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines by
virtue of the powers vested in me by law, do hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID) system for government.1avvphil.net All
government agencies, including government-owned and controlled corporations, are hereby directed to adopt
a unified multi-purpose ID system to ensure the attainment of the following objectives:
a. To reduce costs and thereby lessen the financial burden on both the government and the public brought
about by the use of multiple ID cards and the maintenance of redundant database containing the same or
related information;
b. To ensure greater convenience for those transacting business with the government and those availing of
government services;
c. To facilitate private businesses and promote the wider use of the unified ID card as provided under this
executive order;
d. To enhance the integrity and reliability of government-issued ID cards; and
e. To facilitate access to and delivery of quality and effective government service.
Section 2. Coverage All government agencies and government-owned and controlled corporations issuing ID
cards to their members or constituents shall be covered by this executive order.
Section 3. Data requirement for the unified ID system The data to be collected and recorded by the
participating agencies shall be limited to the following:
Name
Home Address
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height

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Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)
Provided that a corresponding ID number issued by the participating agency and a common reference number
shall form part of the stored ID data and, together with at least the first five items listed above, including the
print of the right thumbmark, or any of the fingerprints as collected and stored, shall appear on the face or back
of the ID card for visual verification purposes.
Section 4. Authorizing the Director-General, National Economic and Development Authority, to Harmonize All
Government Identification Systems. The Director-General, National Economic Development Authority, is
hereby authorized to streamline and harmonize all government ID systems.
Section 5. Functions and responsibilities of the Director-General, National Economic and Development
Authority. In addition to his organic functions and responsibilities, the Director-General, National Economic
and Development Authority, shall have the following functions and responsibilities:
a. Adopt within sixty (60) days from the effectivity of this executive order a unified government ID system
containing only such data and features, as indicated in Section 3 above, to validly establish the identity of the
card holder:
b. Enter into agreements with local governments, through their respective leagues of governors or mayors, the
Commission on Elections (COMELEC), and with other branches or instrumentalities of the government, for the
purpose of ensuring government-wide adoption of and support to this effort to streamline the ID systems in
government;
b. Call on any other government agency or institution, or create subcommittees or technical working groups,
to provide such assistance as may be necessary or required for the effective performance of its functions; and
d. Promulgate such rules or regulations as may be necessary in pursuance of the objectives of this executive
order.
Section 6. Safeguards. The Director-General, National Economic and Development Authority, and the
pertinent agencies shall adopt such safeguard as may be necessary and adequate to ensure that the right to
privacy of an individual takes precedence over efficient public service delivery. Such safeguards shall, as a
minimum, include the following:
a. The data to be recorded and stored, which shall be used only for purposes of establishing the identity of a
person, shall be limited to those specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in violation of a persons right to privacy shall be
allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated as strictly confidential and a personal or
written authorization of the Owner shall be required for access and disclosure of data;

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e. The identification card to be issued shall be protected by advanced security features and cryptographic
technology; and
f. A written request by the Owner of the identification card shall be required for any correction or revision of
relevant data, or under such conditions as the participating agency issuing the identification card shall
prescribe.
Section 7. Funding. Such funds as may be recommended by the Department of Budget and Management
shall be provided to carry out the objectives of this executive order.
Section 8. Repealing clause. All executive orders or issuances, or portions thereof, which are inconsistent
with this executive order, are hereby revoked, amended or modified accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen (15) days after its publication in two (2)
newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand and Five.
Thus, under EO 420, the President directs all government agencies and government-owned and controlled
corporations to adopt a uniform data collection and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it constitutes usurpation of
legislative functions by the executive branch of the government. Furthermore, they allege that EO 420 infringes
on the citizens right to privacy.1
Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following grounds:
1. EO 420 is contrary to law. It completely disregards and violates the decision of this Honorable Court in Ople
v. Torres et al., G.R. No. 127685, July 23, 1998. It also violates RA 8282 otherwise known as the Social
Security Act of 1997.
2. The Executive has usurped the legislative power of Congress as she has no power to issue EO 420.
Furthermore, the implementation of the EO will use public funds not appropriated by Congress for that
purpose.
3. EO 420 violates the constitutional provisions on the right to privacy
(i) It allows access to personal confidential data without the owners consent.
(ii) EO 420 is vague and without adequate safeguards or penalties for any violation of its provisions.
(iii) There are no compelling reasons that will legitimize the necessity of EO 420.
4. Granting without conceding that the President may issue EO 420, the Executive Order was issued without
public hearing.
5. EO 420 violates the Constitutional provision on equal protection of laws and results in the discriminatory
treatment of and penalizes those without ID.2
Issues
Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a usurpation of legislative
power by the President. Second, petitioners claim that EO 420 infringes on the citizens right to privacy.

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Respondents question the legal standing of petitioners and the ripeness of the petitions. Even assuming that
petitioners are bereft of legal standing, the Court considers the issues raised under the circumstances of
paramount public concern or of transcendental significance to the people. The petitions also present a
justiciable controversy ripe for judicial determination because all government entities currently issuing
identification cards are mandated to implement EO 420, which petitioners claim is patently unconstitutional.
Hence, the Court takes cognizance of the petitions.
The Courts Ruling
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, "Coverage. All government agencies and government-owned and controlled
corporations issuing ID cards to their members or constituents shall be covered by this executive order." EO
420 applies only to government entities that issue ID cards as part of their functions under existing laws. These
government entities have already been issuing ID cards even prior to EO 420. Examples of these government
entities are the GSIS,3 SSS,4 Philhealth,5 Mayors Office,6 LTO,7 PRC,8 and similar government entities.
Section 1 of EO 420 directs these government entities to "adopt a unified multi-purpose ID system." Thus, all
government entities that issue IDs as part of their functions under existing laws are required to adopt a uniform
data collection and format for their IDs. Section 1 of EO 420 enumerates the purposes of the uniform data
collection and format, namely:
a. To reduce costs and thereby lessen the financial burden on both the government and the public brought
about by the use of multiple ID cards and the maintenance of redundant database containing the same or
related information;
b. To ensure greater convenience for those transacting business with the government and those availing of
government services;
c. To facilitate private businesses and promote the wider use of the unified ID card as provided under this
executive order;
d. To enhance the integrity and reliability of government-issued ID cards; and
e. To facilitate access to and delivery of quality and effective government service.
In short, the purposes of the uniform ID data collection and ID format are to reduce costs, achieve efficiency
and reliability, insure compatibility, and provide convenience to the people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system to only 14
specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7)
Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12) Two index fingers and
two thumbmarks; (13) Any prominent distinguishing features like moles or others; and (14) Tax Identification
Number.
These limited and specific data are the usual data required for personal identification by government entities,
and even by the private sector. Any one who applies for or renews a drivers license provides to the LTO all
these 14 specific data.
At present, government entities like LTO require considerably more data from applicants for identification
purposes. EO 420 will reduce the data required to be collected and recorded in the ID databases of the

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government entities. Government entities cannot collect or record data, for identification purposes, other than
the 14 specific data.
Various laws allow several government entities to collect and record data for their ID systems, either expressly
or impliedly by the nature of the functions of these government entities. Under their existing ID systems, some
government entities collect and record more data than what EO 420 allows. At present, the data collected and
recorded by government entities are disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,9 the IDs that the Court issues to all its employees, including the Justices,
contain 15 specific data, namely: (1) Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID Number;
(6) Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type; (11) Right Thumbmark; (12) Tax
Identification Number; (13) GSIS Policy Number; (14) Name and Address of Person to be Notified in Case of
Emergency; and (15) Signature. If we consider that the picture in the ID can generally also show the sex of the
employee, the Courts ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only "the first five items listed" in Section
3, plus the fingerprint, agency number and the common reference number, or only eight specific data. Thus, at
present, the Supreme Courts ID contains far more data than the proposed uniform ID for government entities
under EO 420. The nature of the data contained in the Supreme Court ID is also far more financially sensitive,
specifically the Tax Identification Number.
Making the data collection and recording of government entities unified, and making their ID formats uniform,
will admittedly achieve substantial benefits. These benefits are savings in terms of procurement of equipment
and supplies, compatibility in systems as to hardware and software, ease of verification and thus increased
reliability of data, and the user-friendliness of a single ID format for all government entities.
There is no dispute that government entities can individually limit the collection and recording of their data to
the 14 specific items in Section 3 of EO 420. There is also no dispute that these government entities can
individually adopt the ID format as specified in Section 3 of EO 420. Such an act is certainly within the authority
of the heads or governing boards of the government entities that are already authorized under existing laws to
issue IDs.
A unified ID system for all these government entities can be achieved in either of two ways. First, the heads of
these existing government entities can enter into a memorandum of agreement making their systems uniform.
If the government entities can individually adopt a format for their own ID pursuant to their regular functions
under existing laws, they can also adopt by mutual agreement a uniform ID format, especially if the uniform
format will result in substantial savings, greater efficiency, and optimum compatibility. This is purely an
administrative matter, and does not involve the exercise of legislative power.
Second, the President may by executive or administrative order direct the government entities under the
Executive department to adopt a uniform ID data collection and format. Section 17, Article VII of the 1987
Constitution provides that the "President shall have control of all executive departments, bureaus and offices."
The same Section also mandates the President to "ensure that the laws be faithfully executed."
Certainly, under this constitutional power of control the President can direct all government entities, in the
exercise of their functions under existing laws, to adopt a uniform ID data collection and ID format to achieve
savings, efficiency, reliability, compatibility, and convenience to the public. The Presidents constitutional power
of control is self-executing and does not need any implementing legislation.
Of course, the Presidents power of control is limited to the Executive branch of government and does not
extend to the Judiciary or to the independent constitutional commissions. Thus, EO 420 does not apply to the
Judiciary, or to the COMELEC which under existing laws is also authorized to issue voters ID cards.10 This
only shows that EO 420 does not establish a national ID system because legislation is needed to establish a
single ID system that is compulsory for all branches of government.

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The Constitution also mandates the President to ensure that the laws are faithfully executed. There are several
laws mandating government entities to reduce costs, increase efficiency, and in general, improve public
services.11 The adoption of a uniform ID data collection and format under EO 420 is designed to reduce costs,
increase efficiency, and in general, improve public services. Thus, in issuing EO 420, the President is simply
performing the constitutional duty to ensure that the laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President to promulgate. The President has not
usurped legislative power in issuing EO 420. EO 420 is an exercise of Executive power the Presidents
constitutional power of control over the Executive department. EO 420 is also compliance by the President of
the constitutional duty to ensure that the laws are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420, the President
did not make, alter or repeal any law but merely implemented and executed existing laws. EO 420 reduces
costs, as well as insures efficiency, reliability, compatibility and user-friendliness in the implementation of
current ID systems of government entities under existing laws. Thus, EO 420 is simply an executive issuance
and not an act of legislation.
The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID card does not
require legislation. Private employers routinely issue ID cards to their employees. Private and public schools
also routinely issue ID cards to their students. Even private clubs and associations issue ID cards to their
members. The purpose of all these ID cards is simply to insure the proper identification of a person as an
employee, student, or member of a club. These ID cards, although imposed as a condition for exercising a
privilege, are voluntary because a person is not compelled to be an employee, student or member of a club.
What require legislation are three aspects of a government maintained ID card system. First, when the
implementation of an ID card system requires a special appropriation because there is no existing
appropriation for such purpose. Second, when the ID card system is compulsory on all branches of
government, including the independent constitutional commissions, as well as compulsory on all citizens
whether they have a use for the ID card or not. Third, when the ID card system requires the collection and
recording of personal data beyond what is routinely or usually required for such purpose, such that the citizens
right to privacy is infringed.
In the present case, EO 420 does not require any special appropriation because the existing ID card systems
of government entities covered by EO 420 have the proper appropriation or funding. EO 420 is not compulsory
on all branches of government and is not compulsory on all citizens. EO 420 requires a very narrow and
focused collection and recording of personal data while safeguarding the confidentiality of such data. In fact,
the data collected and recorded under EO 420 are far less than the data collected and recorded under the ID
systems existing prior to EO 420.
EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have an ID card.
EO 420 applies only to government entities that under existing laws are already collecting data and issuing ID
cards as part of their governmental functions. Every government entity that presently issues an ID card will still
issue its own ID card under its own name. The only difference is that the ID card will contain only the five data
specified in Section 3 of EO 420, plus the fingerprint, the agency ID number, and the common reference
number which is needed for cross-verification to ensure integrity and reliability of identification.
This Court should not interfere how government entities under the Executive department should undertake cost
savings, achieve efficiency in operations, insure compatibility of equipment and systems, and provide userfriendly service to the public. The collection of ID data and issuance of ID cards are day-to-day functions of
many government entities under existing laws. Even the Supreme Court has its own ID system for employees
of the Court and all first and second level courts. The Court is even trying to unify its ID system with those of
the appellate courts, namely the Court of Appeals, Sandiganbayan and Court of Tax Appeals.

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There is nothing legislative about unifying existing ID systems of all courts within the Judiciary. The same is
true for government entities under the Executive department. If government entities under the Executive
department decide to unify their existing ID data collection and ID card issuance systems to achieve savings,
efficiency, compatibility and convenience, such act does not involve the exercise of any legislative power.
Thus, the issuance of EO 420 does not constitute usurpation of legislative power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing ID cards in
the performance of their governmental functions. There have been no complaints from citizens that the ID
cards of these government entities violate their right to privacy. There have also been no complaints of abuse
by these government entities in the collection and recording of personal identification data.
In fact, petitioners in the present cases do not claim that the ID systems of government entities prior to EO 420
violate their right to privacy. Since petitioners do not make such claim, they even have less basis to complain
against the unified ID system under EO 420. The data collected and stored for the unified ID system under EO
420 will be limited to only 14 specific data, and the ID card itself will show only eight specific data. The data
collection, recording and ID card system under EO 420 will even require less data collected, stored and
revealed than under the disparate systems prior to EO 420.
Prior to EO 420, government entities had a free hand in determining the kind, nature and extent of data to be
collected and stored for their ID systems. Under EO 420, government entities can collect and record only the
14 specific data mentioned in Section 3 of EO 420. In addition, government entities can show in their ID cards
only eight of these specific data, seven less data than what the Supreme Courts ID shows.
Also, prior to EO 420, there was no executive issuance to government entities prescribing safeguards on the
collection, recording, and disclosure of personal identification data to protect the right to privacy. Now, under
Section 5 of EO 420, the following safeguards are instituted:
a. The data to be recorded and stored, which shall be used only for purposes of establishing the identity of a
person, shall be limited to those specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in violation of a persons right to privacy be
allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated as strictly confidential and a personal or
written authorization of the Owner shall be required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced security features and cryptographic
technology;
f. A written request by the Owner of the identification card shall be required for any correction or revision of
relevant data, or under such conditions as the participating agency issuing the identification card shall
prescribe.
On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can be
collected, recorded and shown compared to the existing ID systems of government entities. EO 420 further
provides strict safeguards to protect the confidentiality of the data collected, in contrast to the prior ID systems
which are bereft of strict administrative safeguards.
The right to privacy does not bar the adoption of reasonable ID systems by government entities. Some one
hundred countries have compulsory national ID systems, including democracies such as Spain, France,

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Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries which do not have national ID
systems, like the United States, Canada, Australia, New Zealand, Ireland, the Nordic Countries and Sweden,
have sectoral cards for health, social or other public services.12 Even with EO 420, the Philippines will still fall
under the countries that do not have compulsory national ID systems but allow only sectoral cards for social
security, health services, and other specific purposes.
Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO cannot perform
effectively and efficiently their mandated functions under existing laws. Without a reliable ID system, GSIS,
SSS, Philhealth and similar government entities stand to suffer substantial losses arising from false names and
identities. The integrity of the LTOs licensing system will suffer in the absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to privacy, namely, Griswold v.
Connecticut,13 U.S. Justice Department v. Reporters Committee for Freedom of the Press,14 and Whalen v.
Roe.15 The last two decisions actually support the validity of EO 420, while the first is inapplicable to the
present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law that prohibited the use and
distribution of contraceptives because enforcement of the law would allow the police entry into the bedrooms of
married couples. Declared the U.S. Supreme Court: "Would we allow the police to search the sacred precincts
of the marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship." Because the facts and the issue involved in Griswold are
materially different from the present case, Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could collect and store information on
individuals from public records nationwide but whether the State could withhold such information from the
press. The premise of the issue in U.S. Justice Department is that the State can collect and store in a central
database information on citizens gathered from public records across the country. In fact, the law authorized
the Department of Justice to collect and preserve fingerprints and other criminal identification records
nationwide. The law also authorized the Department of Justice to exchange such information with "officials of
States, cities and other institutions." The Department of Justice treated such information as confidential. A CBS
news correspondent and the Reporters Committee demanded the criminal records of four members of a family
pursuant to the Freedom of Information Act. The U.S. Supreme Court ruled that the Freedom of Information
Act expressly exempts release of information that would "constitute an unwarranted invasion of personal
privacy," and the information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal data collected and recorded under
EO 420 are treated as "strictly confidential" under Section 6(d) of EO 420. These data are not only strictly
confidential but also personal matters. Section 7, Article III of the 1987 Constitution grants the "right of the
people to information on matters of public concern." Personal matters are exempt or outside the coverage of
the peoples right to information on matters of public concern. The data treated as "strictly confidential" under
EO 420 being private matters and not matters of public concern, these data cannot be released to the public or
the press. Thus, the ruling in U.S. Justice Department does not collide with EO 420 but actually supports the
validity EO 420.
Whalen v. Roe is the leading American case on the constitutional protection for control over information. In
Whalen, the U.S. Supreme Court upheld the validity of a New York law that required doctors to furnish the
government reports identifying patients who received prescription drugs that have a potential for abuse. The
government maintained a central computerized database containing the names and addresses of the patients,
as well as the identity of the prescribing doctors. The law was assailed because the database allegedly
infringed the right to privacy of individuals who want to keep their personal matters confidential. The U.S.
Supreme Court rejected the privacy claim, and declared:
Disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to
public health agencies are often an essential part of modern medical practice even when the disclosure may

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reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State
having responsibility for the health of the community does not automatically amount to an impermissible
invasion of privacy. (Emphasis supplied)
Compared to the personal medical data required for disclosure to the New York State in Whalen, the 14
specific data required for disclosure to the Philippine government under EO 420 are far less sensitive and far
less personal. In fact, the 14 specific data required under EO 420 are routine data for ID systems, unlike the
sensitive and potentially embarrassing medical records of patients taking prescription drugs. Whalen,
therefore, carries persuasive force for upholding the constitutionality of EO 420 as non-violative of the right to
privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned Parenthood of Central Missouri
v. Danforth,16 the U.S. Supreme Court upheld the validity of a law that required doctors performing abortions
to fill up forms, maintain records for seven years, and allow the inspection of such records by public health
officials. The U.S. Supreme Court ruled that "recordkeeping and reporting requirements that are reasonably
directed to the preservation of maternal health and that properly respect a patients confidentiality and privacy
are permissible."
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 the U.S. Supreme Court upheld a
law that required doctors performing an abortion to file a report to the government that included the doctors
name, the womans age, the number of prior pregnancies and abortions that the woman had, the medical
complications from the abortion, the weight of the fetus, and the marital status of the woman. In case of statefunded institutions, the law made such information publicly available. In Casey, the U.S. Supreme Court stated:
"The collection of information with respect to actual patients is a vital element of medical research, and so it
cannot be said that the requirements serve no purpose other than to make abortion more difficult."
Compared to the disclosure requirements of personal data that the U.S. Supreme Court have upheld in
Whalen, Danforth and Casey as not violative of the right to privacy, the disclosure requirements under EO 420
are far benign and cannot therefore constitute violation of the right to privacy. EO 420 requires disclosure of 14
personal data that are routine for ID purposes, data that cannot possibly embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot show such
violation by a mere facial examination of EO 420 because EO 420 narrowly draws the data collection,
recording and exhibition while prescribing comprehensive safeguards. Ople v. Torres18 is not authority to hold
that EO 420 violates the right to privacy because in that case the assailed executive issuance, broadly drawn
and devoid of safeguards, was annulled solely on the ground that the subject matter required legislation. As
then Associate Justice, now Chief Justice Artemio V. Panganiban noted in his concurring opinion in Ople v.
Torres, "The voting is decisive only on the need for appropriate legislation, and it is only on this ground that the
petition is granted by this Court."
EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to
their regular functions under existing laws. EO 420 does not grant such government entities any power that
they do not already possess under existing laws. In contrast, the assailed executive issuance in Ople v. Torres
sought to establish a "National Computerized Identification Reference System,"19 a national ID system that did
not exist prior to the assailed executive issuance. Obviously, a national ID card system requires legislation
because it creates a new national data collection and card issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but makes the existing sectoral card
systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and
user-friendly to the public. Hence, EO 420 is a proper subject of executive issuance under the Presidents
constitutional power of control over government entities in the Executive department, as well as under the
Presidents constitutional duty to ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared VALID.

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SO ORDERED.