G.R. No.

154037
April 30, 2003
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
BENJAMIN VERGARA, JONA SARVIDA, MILAGROS
MAJOREMOS, MAJORIE JALALON, MAY JOY MENDOZA (@ May
Joy Sandi), and JOY SABALLA (@ Josephine Saballa), MABELYN B.
VERGARA, RIO SARVIDA, FRANCISCO MAJOREMOS, in their
respective behalves and in behalf of ROY JALALON, ROMMEL
MENDOZA and DELFIN SABALLA,petitioners,
vs.
HON. FRANCISCO C. GEDORIO, JR., Presiding Judge, Regional Trial
Court of Ormoc, Branch 12; SPO3 ANGELO S. LLENOS and the CITY
JAIL WARDEN OF ORMOC; and ELEUTERIA P. BOLAO,
respondents.
AUSTRIA-MARTINEZ, J.:
Petitioners are the tenants of Berlito P. Taripe on a property located in Dr. A.
Santos Ave., Paraaque City. On December 24, 2001, they were arrested by
Ormoc City policemen by authority of a Warrant of Arrest dated November
19, 2001 issued by Judge Fortunito L. Madrona in Sp. Proc. No. 3695-0 for
Issuance of Letters of Administration, Distribution and Partition pending
before the Regional Trial Court of Ormoc City (Branch 12).1
The warrant of arrest stemmed from a motion filed by respondent Eleuteria P.
Bolao, as Special Administratrix of the estate of the late Anselma P. Allers,
praying that petitioners be held guilty of indirect contempt for not complying
with the probate court's order dated October 9, 1999 directing them to pay
their monthly rentals to respondent Bolao.2
It appears that pending the settlement of the estate of the deceased Allers,
respondent Bolao included the property leased by Taripe to petitioners in the
inventory of the estate. The probate court issued the assailed Order dated
October 5, 1999, portions of which read as follows:
1.
SUBMITTED FOR RESOLUTION is an omnibus motion filed by
the Petitioner-Administratrix, informing among others, the submission of the
Inventory of the Estate of the decedent, referred as Motion-Annex 'A' thereof.
The Inventory shows that the properties left by the deceased consists of Real
and Personal Properties, as well as Credits and Collectibles, itemized under
letter heading A, B, and C of the Inventory, respectively.
2.
The Real Properties are occupied by some lessees, namely: Cargo
Bridge Philippines Corporation, represented by its President Mr. Bernhard
Ashauer, Jr.; Mrs. Lea Amorcillo, Mrs. Milagros Majoremos, Mr. Danilo
Aguylo, Mrs. Marjorie Jalalon, Mrs. Jona Sarvida, Mrs. Analyn Malunes,
Mrs. Edna Rubi, Mrs. Josephine Saballa, Mr. Benjamin Vergara, Mr. Jerry
Peligro, Mrs. Mary Joy Sandi, and Mr. Jaime Cabarse, all inside the Allers'
Property Compound at 8110 Dr. A. Santos Ave., San Dionisio, Paraaque
City.

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5.
It is further shown that all known intervenors, lessees and heirs were
served of the motion and notified of the hearing, with no opposition except
intervenor Berlito P. Taripe, based on his claim against the estate, which
may be treated in due time for claims against the estate. However, the motion
under consideration refers to the return to the court of the true Inventory of
the Estate of the deceased within three (3) months as directed under Section
1, Rule 83 which sets a specific period of time to submit, otherwise it is
violated. The opposition is not tenable.
6.
Finding the motion meritorious, the same is hereby GRANTED. As
prayed for, the Inventory of the Estate attached therewith as Motion-Annex
'A' (sic) and considered as a compliance of the required return of the true
Inventory of the estate of the decedent.
7.
Further, the lessees above-cited and listed in the Inventory are
directed to pay their respective monthly rental regularly starting the month of
August, 1999, including arrears if any, to the duly appointed Special
Administratrix Mrs. Eleuteria P. Bolao, until further notice.
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Let copies of this Order together with the Inventory served to all above-cited.
SO ORDERED.3 (Emphasis Ours)
Copies of the order were sent on October 12, 1999 to petitioners via
registered mail.4
Five months later, on motion of respondent Bolao, as Special
Administratrix, the probate court issued a writ of execution on March 3, 2000
to enforce the aforesaid order dated October 5, 1999. The Sheriff submitted a
return dated August 10, 2000 stating that on June 5, 2000, he met with
petitioners but failed to collect the rentals due on the property as Taripe had
already collected from them three months advance rentals.5
On August 4, 2000, respondent Bolao filed a motion to require petitioners to
explain why they should not be cited in indirect contempt for disobeying the
October 5, 1999 order of the probate court.6 Petitioners were served copies of
the motion by registered mail.7 The probate court granted the motion in its
Resolution dated September 7, 2000, portions of which read as follows:
The Motion to Exclude Certain Parcels of Land as part of the Estate of the
decedent is also denied for lack of merit. The properties sought to be
excluded by intervenor Bertito P. Taripe are titled/registered in the name of
the decedent and therefore they should be included in the inventory of the
intestate estate of Anselma Allers.If intervenor has claims against the estate,
he should file a separate action against the Administratrix in accordance
with Rule 87 of the Revised Rules of Court. As it is, intervenor cannot claim
ownership over properties registered in the name of the decedent by mere
motion.
The Return of the Deputy Sheriff of the Writ of Execution is noted.

Petitioner's motion to let the lessees explain why they should not be cited for
contempt for disobeying the Court's order is granted. All lessees listed on the
Writ of Execution are hereby ordered to explain within twenty (20) days from
receipt of this order why they should not be cited for indirect contempt of the
Court for disobeying the Court's Order dated October 5, 1999, and the Writ
of Execution dated May 29, 2000.
SO ORDERED. (Emphasis Ours)
Petitioners were furnished copies of the said Order on September 27, 2000 by
registered mail.8
Six months later, in a letter dated March 18, 2001, some of the petitioners,
together with the other tenants of the property, informed the probate court
that they are "freezing" their monthly rentals as they are in a quandary as to
whom to pay the rentals.9
Respondent Bolao then filed on March 20, 2001, a motion to cite petitioners
in contempt, which was set for hearing on May 11, 2001.10 In its Order dated
May 11, 2001, the probate court found petitioners guilty of indirect contempt
and ordered them to pay a fine of P30,000.00 each and to undergo
imprisonment until they comply with the probate court's order for them to
pay rentals.11
Petitioners again wrote the probate court on June 11, 2001 asking that the
indirect contempt "slapped" against them be withdrawn. They stated that their
failure to attend the May 11, 2001 hearing was due to financial constraints,
most of them working on construction sites, receiving minimum wages, and
repeated that the reason why they are freezing the monthly rentals is that they
are uncertain as to whom to remit it.12
Upon motion of respondent Bolao, the probate court, per its Order dated
November 16, 2001, issued a warrant of arrest on November 19, 2001. On
December 24, 2001, petitioners were arrested.
On December 26, 2001, petitioners filed with the Court of Appeals a petition
for the issuance of a writ of habeas corpus.13 On January 3, 2002, the
appellate court ordered the temporary release of petitioners. 14 After due
proceedings, the appellate court rendered its decision on March 26, 2002
denying the petition for lack of merit. The dispositive portion of the decision
reads:
WHEREFORE, the instant petition for issuance of a writ of habeas corpus is
hereby DENIED for lack of merit. This Court's resolution ordering the
temporary release of the lessees is hereby RECALLED. The lessees are
ordered REMANDED to the custody of the Jail Warden of Ormoc City until
they have complied with the orders of the probate court.
No pronouncement as to costs.
SO ORDERED.15

Their motion for reconsideration having been denied, petitioners filed herein
petition for review on certiorari under Rule 45 of the Rules of Court, based
on the following grounds:
I.
THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE
ORDER DATED OCTOBER 5, 1999 (ANNEX "E") PARTICULARLY
THE PORTION THEREOF WHICH SUMMARILY DIRECTED THE
LESSEES TO TURNOVER THEIR MONTHLY RENTALS OF THE
APARTMENTS OF BERLITO P. TARIPE TO ELEUTERIA P. BOLAO
AS SPECIAL ADMINISTRATRIX, IS UNLAWFUL;
II.
THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE
MOTION FOR INDIRECT CONTEMPT OF COURT FILED BY
RESPONDENT ELEUTERIA P. BOLAO AGAINST THE LESSEES IS
NOT THE PROPER REMEDY AND THAT THE ORDER OF THE
COURT A QUO GRANTING SAID MOTION AND DECLARING THAT
THE LESSEES ARE GUILTY OF INDIRECT CONTEMPT IS A
REVERSIBLE ERROR.
III.
THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE
ORDER OF THE COURT A QUO TO ISSUE WARRANT OF ARREST
AND THE SAID WARRANT SO ISSUED AS WELL AS THE ACTUAL
ARREST OF SAID LESSEES IN COMPLIANCE THEREWITH, ARE
UNLAWFUL;
IV.
THE APPELLATE COURT ERRED IN NOT HOLDING THE
TEMPORARY RELEASE OF THE LESSEES PERMANENT.16
The crux of petitioners' arguments is that they were not notified of the motion
filed by respondent Special Administratrix Bolao, submitting an inventory
of the estate of the late Anselma P. Allers, which includes the property
occupied by them. Such being the case, petitioners contend that the order
dated October 5, 1999 granting the motion and directing them to pay the
rentals to Bolao is unlawful hence, their refusal to comply with it is not
contumacious.17 They also assail the appointment of respondent Bolao as
Special Administratrix for having been made without the required bond, 18
and that she has no authority to file the motion for indirect contempt, as her
powers are limited.19
When service of notice is an issue, the rule is that the person alleging that the
notice was served must prove the fact of service.20 The burden of proving
notice rests upon the party asserting its existence.21 In civil cases, service
made through registered mail is proved by the registry receipt issued by the
mailing office and an affidavit of the person mailing of facts showing
compliance with Section 7 of Rule 13. In the present case, as proof that

petitioners were served with copies of the omnibus motion submitting an

inventory of the estate of deceased Allers, respondent Bolao presented
photocopies of the motion with a certification by counsel that service was
made by registered mail, together with the registry receipts.22 While the
affidavit and the registry receipts proved that petitioners were served with
copies of the motion, it does not follow, however, that petitioners in fact
received the motion. Respondent Bolao failed to present the registry return
cards showing that petitioners actually received the motion.23 Receipts for
registered letters and return receipts do not prove themselves, they must be
properly authenticated in order to serve as proof of receipt of the letters. 24
Respondent also failed to present a certification of the postmaster that notice
was duly issued and delivered to petitioners such that service by registered
mail may be deemed completed.25
Nonetheless, even in the absence of proof of actual receipt by the petitioners,
the subject orders issued by the probate court are valid and enforceable.
Petitioners cannot deny the fact that they had actual knowledge of the said
orders. They have admitted in their letter dated March 18, 2001 addressed to
the probate court that they received the court's order dated October 5, 1999
"barely 2 months before," 26 or sometime in January 2001. Instead of
complying with the said order, they "froze" payment of their rentals for the
reason that they are caught in the middle of the dispute and are not sure to
whom to give the rentals. When respondent Bolao filed the motion to cite
them in indirect contempt, setting the hearing on May 11, 2001, again,
records show that they had actual knowledge of the same. In their second
letter, dated June 11, 2001, addressed to the probate court, they
acknowledged that they knew of the hearing set on May 11, 2001, and the
reason for their failure to attend was due to financial constraints.27 They
likewise admitted in said letter that they knew of the court's order dated May
11, 2001 finding them guilty of indirect contempt. 28 Petitioners therefore
cannot cry denial of due process as they were actually notified of the
proceedings before the probate court. Thus, under the circumstances, it is not
imperative to require proof of a formal notice. It would be an idle ceremony
where an adverse party, as in this case, had actual knowledge of the
proceedings.29
When petitioners refused to remit the rentals to respondent Bolao per Order
dated October 5, 1999, a written charge of indirect contempt was duly filed
before the trial court and hearing on the motion set on May 11, 2001. As
previously stated, petitioners did not attend said hearing despite knowledge
thereof; instead, they wrote the court on June 11, 2001 asking that the
contempt findings against them be withdrawn. Clearly, they were given the
opportunity to be heard, and as aptly stated by the court, they were given
more than sufficient time to comply with the Order dated October 5, 1999. 30

Despite the foregoing, we find that the trial court's finding of contempt and
the order directing the imprisonment of petitioner to be unwarranted. The
salutary rule is that the power to punish to contempt must be exercised on the
preservative, not vindictive principle, and on the corrective and not
retaliatory idea of punishment. Court must exercise their contempt powers
judiciously and sparingly, with utmost self-restraint.31
In Halili vs. Court of Industrial Relations,32 the Court quoted the
pronouncements of some American courts, to wit:
Except where the fundamental power of the court to imprison for contempt
has been restricted by statute, and subject to constitutional prohibitions where
a contemnor fails or refuses to obey an order of the court for the payment of
money he may be imprisoned to compel obedience to such order. [Fla.
Revell v. Dishong, 175 So. 905, 129 Fla. 9; Va. Branch v. Branch, 132 S.E.
303; 144 Va. 244]. (17 C.J.S. 287).
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. . . It has been said that imprisonment for contempt as a means of coercion
for civil purpose cannot be resorted to until all other means fail [Mich.
Atchison, etc. R. co. v. Jennison, 27 N.W. 6, 60 Mich. 232], but the court's
power to order the contemnor's detension continues so long as the contumacy
persists [Ark.Lane v. Alexander, 271 S.W. 710, 168 Ark. 700] (17 C.J.S.
289).33
which we hereby adopt as proper guidelines in the determination of whether
the Court of Appeals erred in affirming the order of the trial court finding
petitioners guilty of indirect contempt of court and directing their
imprisonment for their contumacious refusal to pay the rentals to the
administratrix.
In Philippine jurisdiction, Section 20, Article 3 of the 1987 Philippine
Constitution expressly provides that no person shall be imprisoned for debt.
Debt, as used in the Constitution, refers to civil debt or one not arising from a
criminal offense.34 It means any liability to pay arising out of a contract,
express or implied.35 In the present case, petitioners, as recognized lessees of
the estate of the deceased, were ordered by the probate court to pay the
rentals to the administratrix. Petitioners did not comply with the order for the
principal reason that they were not certain as to the rightful person to whom
to pay the rentals because it was a certain Berlito P. Taripe who had
originally leased the subject property to them. Clearly, the payment of rentals
is covered by the constitutional guarantee against imprisonment.
Moreover, petitioners cannot be validly punished for contempt under Section
8, Rule 71 of the Rules of Court to wit:
SEC. 8. Imprisonment until order obeyed. When the contempt consists in
the refusal or omission to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by order of the court concerned
until he performs it. (7a)
2

because herein subject order is not a special judgment enforceable, under

Section 11, Rule 39, which provides:
SEC. 11.Execution of special judgment. When a judgment requires the
performance of any act other than those mention in the two preceding
sections, a certified copy of judgment shall be attached to the writ of
execution and shall be served by the officer upon the party against whom the
same is rendered, or upon any other person required thereby, or by law to
obey the same, and such party or person may be punished for contempt if he
disobeys such judgment.
Section 9 of Rule 39 refers to the execution of judgments for money, thus:
SEC. 9. Execution of judgments for money, how enforced. (a) Immediate
payment on demand. The officer shall enforce an execution of a judgment
for money by demanding from the judgment obligor the immediate payment
of the full amount stated in the writ of execution and all lawful fees. The
judgment obligor shall pay in cash, certified bank check payable to the
judgment obligee, or any other form of payment acceptable to the latter, the
amount of the judgment debt under proper receipt directly to the judgment
obligee or his authorized representative if present at the time of payment. The
lawful fees shall be handed under proper receipt to the executing sheriff who
shall turn over the said amount within the same day to the clerk of court of
the court that issued the writ.
If the judgment obligee or his authorized representative is not present to
receive payment, the judgment obligor shall deliver the aforesaid payment to
the executing sheriff. The latter shall turn over all the amounts coming into
his possession within the same day to the clerk of court of the court that
issued the writ, or if the same is not practicable, deposit said amounts to a
fiduciary account in the nearest government depository bank of the Regional
Trial court of the locality.
The clerk of said court shall thereafter arrange for the remittance of the
deposit to the account of the court that issued the writ whose clerk of court
shall then deliver said payment to the judgment obligee in satisfaction of the
judgment. The excess, if any, shall be delivered to the judgment obligor while
the lawful fees shall be retained by the clerk of court for disposition as
provided by law. In no case shall the executing sheriff demand that any
payment by check be made payable to him.
(b)
Satisfaction by levy. If the judgment obligor cannot pay all or part
of the obligation in cash, certified bank check or other mode or payment
acceptable to the judgment obligee, the officer shall levy upon the properties
of the judgment obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from execution giving the
latter the option to immediately choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment. If the judgment obligor does
not exercise the option, the officer shall first levy on the personal properties,

if any, and then on the real properties if the personal properties are
insufficient to answer for the judgment.
The sheriff shall sell only a sufficient portion of the personal or real property
of the judgment obligor which has been levied upon.
When there is more property of the judgment obligor than is sufficient to
satisfy the judgment and lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy the judgment and lawful
fees.
Real property, stocks, shares, debts, credits, and other personal property, or
any interest in either real or personal property, may be levied upon in like
manner and with like effect as under a writ of attachment.
(c)
Garnishment of debts and credits. The officer may levy on debts
due the judgment obligor and other credits, including bank deposits, financial
interests, royalties, commissions and other personal property not capable of
manual delivery in the possession or control of third parties. Levy shall be
made by serving notice upon the person owing such debts or having in his
possession or control such credits to which the judgment obligor is entitled.
The garnishment shall cover only such amount as will satisfy the judgment
and all lawful fees.
The garnishee shall make a written report to the court within five (5) days
from service of the notice of garnishment stating whether or not the judgment
obligor has sufficient funds or credits to satisfy the amount of the judgment.
If not, the report shall state how much funds or credits the garnishee holds for
the judgment obligor. The garnished amount in cash, or certified bank check
issued in the name of the judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from service of notice on said
garnishee requiring such delivery, except the lawful fees which shall be paid
directly to the court.
In the event there are two or more garnishees holding deposits or credits
sufficient to satisfy the judgment, the judgment obligor, if available, shall
have the right to indicate the garnishee or garnishees who shall be required to
deliver the amount due; otherwise, the choice shall be made by the judgment
obligee.
The executing sheriff shall observe the same procedure under paragraph (a)
with respect to delivery of payment to the judgment obligee. (8a, 15a)
while Section 10 of the same Rule refers to execution of judgments for
specific acts such as conveyance, delivery of deeds or other specific acts
vesting title; sale of real or personal property, delivery or restitution of real
property, removal of improvements on property subject of execution and
delivery of personal property.
The order directing the payment of rentals falls within the purview of Section
9 as quoted above. Until and unless all the means provided for under Section
9, Rule 39 have been resorted to and failed, imprisonment for contempt as a

means of coercion for civil purposes cannot be resorted to by the courts.36 In

Sura vs. Martin, Sr.,37 we held that:
Where an order for the arrest and imprisonment of defendant for contempt of
court (for failure to satisfy a judgment for support on ground of insolvency)
would, in effect, violate the Constitution.
Thus, petitioners could not be held guilty of contempt of court for their
continued refusal to comply with the probate court's order to pay rentals to
the administratrix nor could they be held guilty of contempt for disobeying
the writ of execution issued by the probate court, which directs therein the
Sheriff, thus:
Should lessees fail to pay the aforementioned amounts on rentals, then of the
goods and chattels of said lessees you may cause to be made the sum
sufficient to cover the aforestated amounts, but if no sufficient personal
properties are found thereof to satisfy this execution, then of the real
properties you make the sums of money in the manner required by law and
make return of your proceeding under this writ within the reglementary
period.38
It was the sheriff's duty to enforce the writ.39
Under Section 9(b), Rule 39, of the Rules of Court, in cases when the
execution calls for payment of money and the obligor cannot pay all or part
of the obligation in cash, certified bank check or other mode or payment
acceptable to the judgment obligee, the officer shall levy upon the properties
of the judgment obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from execution giving the
latter the option to immediately choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment. If the judgment obligor does
not exercise the option, the officer shall first levy on the personal properties,
if any, and then on the real properties if the personal properties are
insufficient to answer for the judgment. The sheriff shall sell only a sufficient
portion of the personal or real property of the judgment obligor which has
been levied upon. When there is more property of the judgment obligor than
is sufficient to satisfy the judgment and lawful fees, he must sell only so
much of the personal or real property as is sufficient to satisfy the judgment
and lawful fees. Real property, stocks, shares, debts, credits, and other
personal property, or any interest in either real or personal property, may be
levied upon in like manner and with like effect as under a writ of attachment.
The writ of execution issued by the trial court in this case commanded its
sheriff to collect from petitioners the rentals due from the property, and
should they fail to pay, from petitioners' personal/real properties sufficient to
cover the amounts sought to be collected.40 It was not addressed to
petitioners. It pertained to the sheriff to whom the law entrusts the execution
of judgments,41 and it was due to the latter's failure that the writ was not duly
enforced.
3

In fine, the Court of Appeals committed a reversible error in affirming the

Decision dated November 16, 2001 of the trial court.
WHEREFORE, finding the petition for review on certiorari to be with merit,
the decision dated March 26, 2002 rendered by the Court of Appeals is
REVERSED and SET ASIDE. Its Resolution dated January 3, 2002 ordering
the temporary release of petitioners is made permanent. The Warrant of
Arrest dated November 19, 2001 issued by the Regional Trial Court of
Ormoc City (Branch 12) in Sp. Proc. No. 3695-0 is DEEMED RECALLED.
No costs.
SO ORDERED.
Bellosillo, Quisumbing and Callejo, Sr., JJ ., concur.

G.R. No. L-24447

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs.WILLY
OBSANIA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Maximo V. Cuesta, Jr. for defendant-appellee.
CASTRO, J.:
Before us for review, on appeal by the People of the Philippines, is an order,
dated January 8, 1965, of the Court of First Instance of Pangasinan
dismissing, upon motion of the defense, an indictment for rape against Willy
Obsania.
On November 22, 1964, barely a day after the occurence of the alleged crime,
Erlinda Dollente, the 14-year old victim, and her parents, Ciriaco Dollente
and Carmelita Lureta, filed in the municipal court of Balungao, Pangasinan a
complaint for rape with robbery, [[1]] alleging
That on or about the 21st day of November 1964, at around 2:00 to 3:00 in
the afternoon, particularly in sitio Cawakalan, barrio of Capulaan,
municipality of Balungao, Province of Pangasinan, Philippines and within the
jurisdiction of the Honorable Court, the said accused Willy Obsania, armed
with a dagger, by means of violence and intimidation, willfully, unlawfully
and feloniously did then and there have carnal knowledge of the complainant
Erlinda Dollente, against her will and on the roadside in the ricefields at the
above-mentioned place while she was alone on her way to barrio San
Raymundo.
After the case was remanded to the Court of First Instance of Pangasinan for
further proceedings, the assistant provincial fiscal filed an information for
rape against the accused, embodying the allegations of the above complaint,
with an additional averment that the offense was committed "with lewd
designs".
The accused pleaded not guilty upon arraignment, and forthwith his counsel
moved for the dismissal of the case, contending that the complaint was fatally
defective for failure to allege "lewd designs" and that the subsequent

information filed by the fiscal which averred "lewd designs" did not cure the
jurisdictional infirmity. The court a quogranted the motion and ordered
dismissal of the action, ruling that "the failure of the complaint filed by the
offended party to allege that the acts committed by the accused were with
'lewd designs' does not give this Court jurisdiction to try the case." From this
order, the fiscal brought the instant appeal.
Two issues are tendered for resolution, namely: first, are "lewd designs" an
indispensable element which should be alleged in the complaint?, and,
second, does the present appeal place the accused in double jeopardy?

in confusing the concept of jurisdiction with that of insufficiency in substance

of an indictment.
We come now to the more important issue of double jeopardy. The accused
maintains that "assuming, arguendo, that the argument is right that the court a
quo has jurisdiction, the appeal of the Government constitutes double
jeopardy."
An appeal by the prosecution in a criminal case is not available if the
defendant would thereby be placed in double jeopardy.[[3]] Correlatively,
section 9, Rule 117 of the Revised Rules of Court provides:

Both must be answered in the negative.

The accused, in his motion to dismiss, as well as the trial judge, in his order
of dismissal, rely basically on the ruling in People vs. Gilo (L-18202, April
30, 1964). In the case which involved a prosecution for acts of lasciviousness
this Court, in passing, opined that "lewd design" is
... an indispensable element of all crimes against chastity, such as abduction,
seduction and rape, including acts of lasciviousness ... an element that
characterizes all crimes against chastity, apart from the felonious or criminal
intent of the offender, and such element must be always present in order that
they may be considered in contemplation of law.
Nothing in the foregoing statement can be reasonably interpreted as requiring
anexplicit allegation of "lewd design" in a complaint for rape. We hold in no
uncertain terms that in a complaint for rape it is not necessary to allege "lewd
design" or "unchaste motive", for to require such averment is to demand a
patent superfluity. Lascivious intent inheres in rape and the unchaste design
is manifest in the very act itself the carnal knowledge of a woman through
force or intimidation, or when the woman is deprived of reason or otherwise
unconscious, or when the woman is under twelve years of age. [[2]]
It is clear that the complaint here satisfies the requirements of legal
sufficiency of an indictment for rape as it unmistakably alleges that the
accused had carnal knowledge of the complainant by means of violence and
intimidation. We therefore hold that the trial judge erred in dismissing the
case on the proffered grounds that the complaint was defective for failure to
allege "lewd design" and, as a consequence of such infirmity, that the court a
quo did not acquire jurisdiction over the case. The error of the trial judge was

When a defendant shall have been convicted or acquitted, or the case against
him dismissed or otherwise terminated without the express consent of the
defendant, by a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and substance to sustain
a conviction, and after the defendant had pleaded to the charge, the
conviction or acquittal of the defendant or the dismissal of the case shall be a
bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former
complaint or information.
In order that the protection against double jeopardy may inure in favor of an
accused, the following requisites must have obtained in the original
prosecution: (a) a valid complaint or information; (b) a competent court; (c)
the defendant had pleaded to the charge; and (d) the defendant was acquitted,
or convicted, or the case against him was dismissed or otherwise terminated
without his express consent.
The complaint filed with the municipal court in the case at bar was valid; the
court a quo was a competent tribunal with jurisdiction to hear the case; the
record shows that the accused pleaded not guilty upon arraignment. Hence,
the only remaining and decisive question is whether the dismissal of the case
was without the express consent of the accused.
The accused admits that the controverted dismissal was ordered by the trial
judge upon his motion to dismiss. However, he vehemently contends that
under the prevailing jurisprudence, citing People vs. Bangalao, et al. (94
Phil. 354, February 17, 1954), People vs. Labatete (L-12917, April 27, 1960),
5

People vs. Villarin (L-19795, July 31, 1964), and People vs. Cloribel (L20314, August 31, 1964), an erroneous dismissal of a criminal action, even
upon the instigation of the accused in a motion to quash or dismiss, does not
bar him from pleading the defense of double jeopardy in a subsequent appeal
by the Government or in a new prosecution for the same offense. The
accused suggests that the above-enumerated cases have abandoned the
previous ruling of this Court to the effect that when a case is dismissed, other
than on the merits, upon motion of the accused personally or through counsel,
such dismissal is to be regarded as with the express consent of the accused
and consequently he is deemed to have waived [[4]] his right to plead double
jeopardy and/or he is estopped [[5]] from claiming such defense on appeal by
the Government or in another indictment for the same offense.
This particular aspect of double jeopardy dismissal or termination of the
original case without the express consent of the defendant has evoked
varied and apparently conflicting rulings from this Court. We must untangle
this jurisprudential maze and fashion out in bold relief a ruling not
susceptible of equivocation. Hence, a searching extended review of the
pertinent cases is imperative.
The doctrine of waiver of double jeopardy was enunciated and formally
labelled as such for the first time in 1949 in People vs. Salico, supra, with
three justices dissenting. 6 In that case, the provincial fiscal appealed from
the order of the trial court dismissing, upon motion of the defendant made
immediately after the prosecution had rested its case, an indictment for
homicide, on the ground that the prosecution had failed to prove that the
crime was committed within the territorial jurisdiction of the trial court, or,
more specifically, that the municipality of Victorias in which the crime was
allegedly committed was compromised within the province of Negros
Occidental. Rejecting the claim of the accused that the appeal placed him in
double jeopardy, this Court held that the dismissal was erroneous because the
evidence on record showed that the crime was committed in the town of
Victorias and the trial judge should have taken judicial notice that the said
municipality was included within the province of Negros Occidental and
therefore the offense charged was committed within the jurisdiction of the
court of first instance of the said province. In ruling that the appeal by the
Government did not put the accused in peril of a second jeopardy, this Court
stressed that with "the dismissal of the case by the court below upon motion
of the defendant, the latter has not been in jeopardy," and "assuming,
arguendo, that the defendant had been already in jeopardy in the court below
and would be placed in double jeopardy by the appeal, the defendant has
waived his constitutional right not to be put in danger of being convicted

twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the
majority, reasoned that
... when the case is dismissed with the express consent of the defendant, the
dismissal will not be a bar to another prosecution for the same offense;
because, his action in having the case dismissed constitutes a waiver of his
constitutional right or privilege, for the reason that he thereby prevents the
court from proceeding to the trial on the merits and rendering a judgment of
conviction against him.
The Salico doctrine was adhered to and affirmed in People vs. Marapao (85
Phil. 832, March 30, 1950), Gandicela vs. Lutero (88 Phil. 299, March 5,
1951), People vs. Pinuela, et al. (91 Phil. 53, March 28, 1952), Co Te Hue vs.
Encarnacion (94 Phil. 258, January 26, 1954), and People vs. Desalisa (L15516, December 17, 1966).
In Marapao, the defendant was indicted for slight physical injuries in the
municipal court of Sibonga, Cebu. After the prosecution had rested its case, a
continuance was had, and when trial was resumed, the court, upon motion of
the defense, ordered the case dismissed for failure of the prosecution to
appear. However, the court reconsidered this order upon representation of the
fiscal who appeared moments later, and ordered the defense to present its
evidence. The accused moved to get aside the latter order on the ground that
it placed him in double jeopardy. Acceding to this motion, the court
dismissed the case. Subsequently, the accused was charged in the Court of
First Instance of Cebu with the offense of assault upon a person in authority,
based on the same facts alleged in the former complaint for slight physical
injuries. Again, upon motion of the accused, the trial court dismissed the new
indictment on the ground of double jeopardy. From this order, the
prosecution appealed. In upholding the appeal of the Government, this Court
observed that although the information for assault necessarily embraced the
crime of slight physical injuries for which the accused was indicted in the
justice of the peace court,
... it appears that the appellee was neither convicted nor acquitted of the
previous charge against him for slight physical injuries, for that case was
dismissed upon his own request before trial could be finished. Having
himself asked for such dismissal, before a judgment of conviction or acquittal
could have been rendered, the appellee is not entitled to invoke the defense of
double jeopardy.

In Gandicela, this Court had occasion to reiterate the Salico ruling:

But where a defendant expressly consents to, by moving for, the dismissal of
the case against him, as in the present case, even if the court or judge states in
the order that the dismissal is definite or does not say that the dismissal is
without prejudice on the part of the fiscal to file another information, the
dismissal will not be a bar to a subsequent prosecution of the defendant for
the same offense. (People vs. Ylagan, 58 Phil. 851; People vs. Salico, 84 Phil.
722.)
And in denying the motion for reconsideration filed by the accused in that
case, this Court held:
According to Section 9 of Rule 13, if a criminal case is dismissed otherwise
than upon the merits at any stage before judgment, without the express
consent of the defendant, by a court of competent jurisdiction, upon a valid
complaint or information, and after the defendant has pleaded to the charge,
the dismissal of the case shall be definite or a bar to another prosecution for
the same offense; but if it is dismissed upon the petition or with the express
consent of the defendant, the dismissal will be without prejudice or not a bar
to another prosecution for the same offense, because, in the last case, the
defendant's action in having the case dismissed constitutes a waiver of his
constitutional right not to be prosecuted again for the same offense.
In Pinuela, as in Salico, the prosecution had presented its evidence against
the defendant, and the trial court, upon motion of the accused, dismissed the
criminal action for lack of evidence showing that the crime charged was
committed within its territorial jurisdiction. On appeal by the Government,
this Court found that the evidence showed otherwise and, like in Salico, the
majority rejected the plea of double jeopardy interposed by the accused on
the ground that his virtual instigation of the erroneous dismissal amounted to
a waiver of his right against a second jeopardy.
In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed
against him having been dismissed, albeit provisionally, without his express
consent, its revival constituted double jeopardy which bars a subsequent
prosecution for the same offense. This claim was traversed by the Solicitor
General who contended that considering what had transpired in the
conference between the parties, the provisional dismissal was no bar to the
subsequent prosecution for the reason that the dismissal was made with the
6

defendant's express consent. This Court sustained the view of the Solicitor
General, thus:

waived the plea of double jeopardy in connection with an appeal from the
order of dismissal, appellees here are not precluded from making such plea.

We are inclined to uphold the view of the Solicitor General. From the
transcript of the notes taken at the hearing in connection with the motion for
dismissal, it appears that a conference was held between petitioner and the
offended party in the office of the fiscal concerning the case and that as a
result of that conference the offended party filed the motion to dismiss. It also
appears that as no action has been taken on said motion, counsel for
petitioner invited the attention of the court to the matter who acted thereon
only after certain explanation was given by said counsel. And when the order
came the court made it plain that the dismissal was merely provisional in
character. It can be plainly seen that the dismissal was effected not only with
the express consent of the petitioner but even upon the urging of his counsel.
This attitude of petitioner, or his counsel, takes this case out of the operation
of the rule.

To paraphrase, had the dismissal been anchored on the motion to dismiss, the
defendants would not have been entitled to protection against double
jeopardy.

In essence, this Court held that where a criminal case is dismissed

provisionally not only with the express consent of the accused but even upon
the urging of his counsel, there can be no double jeopardy under section 9,
Rule 113, if the indictment against him is revived by the fiscal. This decision
subscribes substantially to the doctrine on waiver established in Salico.
The validity and currency of the Salico doctrine were intimated in the recent
case ofPeople vs. Fajardo (L-18257, June 29, 1966), and six months later
were reaffirmed inPeople vs. Desalisa, supra.
In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed:
The record does not reveal that appellees expressly agreed to the dismissal of
the information as ordered by the trial Judge or that they performed any act
which could be considered as express consent within the meaning of the rule.
While they did file a motion asking that the case be quashed or that a
reinvestigation thereof be ordered, the court granted neither alternative. What
it did was to order the prosecution to amend the complaint. This order was in
effect a denial of the motion to quash, and it was only after the prosecution
failed to amend that the court dismissed the case on that ground.
Consequently, even under the theory enunciated in some decisions of this
Court (People vs. Salico, etc.) that if a valid and sufficient information is
erroneously dismissed upon motion of the defendant he is deemed to have

Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice

Jesus Barrera, held that
... The ruling in the case of Salico, that the act of the defendant in moving for
the dismissal of the case constitutes a waiver of the right to avail of the
defense of double jeopardy, insofar as it applies to dismissals which do not
amount to acquittal or dismissal of the case on the merits, cannot be
considered to have been abandoned by the subsequent decisions on the
matter. (Emphasis supplied)
xxxxxxxxx
... an appeal of the prosecution from the order of dismissal (of the criminal
complaint) by the trial court will not constitute double jeopardy if (1) the
dismissal is made upon motion, or with the express consent, of the defendant,
and (2) the dismissal is not an acquittal or based upon consideration of the
evidence or of the merits of the case; and (3) the question to be passed upon
by the appellate court is purely legal; so that should the dismissal be found
incorrect, the case would have to be remanded to the court of origin for
further proceedings, to determine the guilt or innocence of the defendant.
(Emphasis supplied)
The doctrine of estoppel in relation to the plea of double jeopardy was first
enunciated in Acierto which held that when the trial court dismisses a case on
a disclaimer of jurisdiction, upon the instigation of the accused, the latter is
estopped on appeal from asserting the jurisdiction of the lower court in
support of his plea of second jeopardy. The doctrine of estoppel is in
quintessence the same as the doctrine of waiver: the thrust of both is that a
dismissal, other than on the merits, sought by the accused in a motion to
dismiss, is deemed to be with his express consent and bars him from
subsequently interposing the defense of double jeopardy on appeal or in a
new prosecution for the same offense.

In Acierto, the defendant was charged before a United States court-martial

with having defrauded the Government of the United States, through
falsification of documents, within a military base of the United States in the
Philippines. The challenge by the accused against the jurisdiction of the
military tribunal was brushed aside, and he was convicted. On review, the
verdict was reversed by the Commanding General who sustained Acierto's
position on the ground of lack of jurisdiction. Subsequently, he was convicted
of estafa and falsification based on the same facts by the Court of first
Instance of Rizal. On appeal to this Court, he claimed former jeopardy in the
court-martial proceedings, asserting that the military court actually had
jurisdiction. In a unanimous [[7]] decision, this Court, through Mr. Justice
Pedro Tuason, ruled:
This is the exact reverse of the position defendant took at the military trial.
As stated, he there attacked the court-martial's jurisdiction with the same
vigor that he now says the court-martial did have jurisdiction; and thanks to
his objections, so we incline to believe, the Commanding General, upon
consultation with, and the recommendation of, the Judge Advocate General
in Washington, disapproved the court-martial proceedings.
xxxxxxxxx
Irrespective of the correctness of the views of the Military authorities, the
defendant was estopped from demurring to the Philippine court's jurisdiction
and pleading double jeopardy on the strength of his trial by the courtmartial, A party will not be allowed to make a mockery of justice by taking
inconsistent positions which if allowed would result in brazen deception. It is
trifling with the courts, contrary to the elementary principles of right dealing
and good faith, for an accused to tell one court that it lacks authority to try
him and, after he has succeeded in his effort, to tell the court to which he has
been turned over that the first has committed error in yielding to his plea.
(Emphasis supplied)
The Acierto ruling was reiterated in People vs. Amada Reyes, et al. (96 Phil.
827, April 30, 1955); People vs. Reyes, et al. (98 Phil. 646, March 23, 1956);
People vs. Casiano (L-15309, February 16, 1961), and People vs. Archilla
(L-15632, February 28, 1961).
The defendants in People vs. Amada Reyes, et al., were charged as
accessories to the crime of theft committed by their brother, Anselmo, the
principal accused. The latter pleaded guilty to simple theft and was sentenced
7

accordingly. The former pleaded not guilty and subsequently filed a motion
to quash on the ground that being brothers and sisters of the principal
accused, they were exempt from criminal responsibility for the acts charged
against them in the information. Thereupon, the prosecution moved to amend
the information so as to allege that the defendants profited from the effects of
the crime. In view of this development, counsel for the defendants moved to
withdraw their motion to quash, and objected to the proposed amendment
which sought to change materially the information after plea without the
consent of the accused. Without acting on the petition to withdraw the motion
to quash, the trial court denied the motion of the prosecution on the ground
that the proposed amendment would substantially affect the fundamental
rights of the accused who were exempt from liability under the information
because of their relation to the principal culprit. Then the prosecution moved
for the dismissal of the case against the alleged accessories with reservation
to file a new information. The court ordered the dismissal without ruling on
the reservation. Subsequently, a new information was filed virtually
reproducing the previous one except that now there was an added allegation
of intent to gain. The lower court quashed the new information upon motion
of the accused on the ground of double jeopardy. On appeal by the
prosecution, this Court, thru Mr. Justice J. B. L. Reyes, held that the plea of
double jeopardy was erroneously sustained because

Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief
Justice Paras, reiterated the Acierto ruling thus:

In the first place, the accused-appellees herein filed a motion to quash on the
ground that they incurred no criminal liability under the facts alleged in the
information in the preceding case, No. Q-972, and the trial court instead of
allowing the withdrawal of the motion to quash, virtually sustained the same
when it denied the fiscal's motion to amend, thereby forcing the latter to
dismiss the case; hence, it can not be held that the former case was terminated
without the express consent of the accused. Secondly, the defendants
themselves showed that the information in the previous case was insufficient
to charge them with any criminal offense, in view of their relationship with
the principal accused; and it is well established doctrine that for jeopardy to
attach, there must be an information sufficient in form and substance to
sustain a conviction. Lastly, the herein accused having successfully
contended that the information in the former case was insufficient to sustain a
conviction, they cannot turn around now and claim that such information was
after all, sufficient and did place them in danger of jeopardy of being
convicted thereunder. If, as they formerly contended, no conviction could be
had in the previous case, they are in estoppel to contend now that the
information in the second case places them in jeopardy for the second time.
Their case comes within the spirit of the rule laid down in People vs. Acierto.

We come now to the case of People vs. Casiano. In this case the accused was
charged with estafa in a complaint filed with the justice of the peace court of
Rosales, Pangasinan. The accused waived her right to preliminary
investigation and the record was accordingly forwarded to the Court of First
Instance of Pangasinan where the provincial fiscal filed an information for
"illegal possession and use of false treasury or bank notes." Upon
arraignment the defendant pleaded not guilty. Subsequently, the defense filed
a motion to dismiss on the thesis that there had been no preliminary
investigation of the charge of illegal possession and use of false treasury or
bank notes, and that the absence of such preliminary investigation affected
the jurisdiction of the trial court. The motion was granted on the ground that
the waiver made by the defendant in the justice of the peace court did not
deprive her of the right to a preliminary investigation of an entirely different
crime. On appeal to this Court, it was held that the dismissal was erroneous
because the allegations of the information filed in the Court of First Instance
were included in those of the complaint filed in the justice of the peace court
where the defendant had already waived her right to a preliminary
investigation. On the question of whether the appeal placed the defendant in
double jeopardy, this Court, thru Mr. Chief Justice (then Associate Justice)
Concepcion, observed that the situation of Casiano was identical to that of the
accused in Acierto

Where the complaint or information is in truth valid and sufficient, but the
case is dismissed upon the petition of the accused on the ground that the
complaint or information is invalid and insufficient, such dismissal will not
bar another prosecution for the same offense and the defendant is estopped
from alleging in the second information that the former dismissal was wrong
because the complaint or information was valid.
In this particular case, upon motion of the defendants, the trial court
dismissed the information because it did not allege the use of violence,
notwithstanding the fact that the offense charged was coercion under article
287 of the Revised Penal Code. On appeal, however, this Court ruled that the
dismissal was erroneous because "although the offense named in the
information is coercion, it does not necessarily follow that the applicable
provision is the first paragraph, since the second paragraph also speaks of
'coercions'. Inasmuch as the recitals in the information do not include
violence, the inevitable conclusion is that the coercion contemplated is that
described and penalized in the second paragraph."

... were she to plead double jeopardy in this case, for such plea would require
the assertion of jurisdiction of the court of first instance to try her and that the
same erred in yielding to her plea therein for lack of authority therefor. In the
language of our decision in the Acierto case, it is immaterial whether or not
the court a quohad said authority. It, likewise, makes no difference whether
or not the issue raised by defendant in the lower court affected its
jurisdiction. The fact is that she contested its jurisdiction and that, although
such pretense was erroneous, she led the court to believe that it was correct
and to act in accordance with such belief. The elementary principles of fair
dealing and good faith demand, accordingly, that she be estopped now from
taking the opposite stand in order to pave the way for a plea of double
jeopardy, unless the rule of estoppel laid down in the Acierto case is revoked.
As a matter of fact, said rule applies with greater force to the case at bar than
to the Acierto case, because the same involved two (2) separate
proceedingsbefore courts deriving their authority from different
sovereignties, whereas the appeal in the case at bar is a continuation of the
proceedings in the lower court, which like this Supreme Court, is a creature
of the same sovereignty. In short the inconsistency and impropriety would be
more patent and glaring in this case than in that of Acierto, if appellant herein
pleaded double jeopardy in this instance.
This Court then forthnightly stated that "the rule of estoppel applied in the
Acierto case should be maintained, because:
1. It is basically and fundamentally sound and just.
2. It is in conformity with the principles of legal ethics, which demand good
faith of the higher order in the practice of law.
3. It is well settled that parties to a judicial proceeding may not, on appeal,
adopt a theory inconsistent with that which they sustained in the lower court.
xxxxxxxxx
4. The operation of the principle of estoppel on the question of jurisdiction
seemingly depends whether the lower court actually had jurisdiction or not.
If it had no jurisdiction, but the case was tried and decided upon the theory
that it had jurisdiction, the parties are not barred on appeal, from assailing
such jurisdiction, for the same "must exist as a matter of law, and may not be
conferred by consent of the parties or by estoppel" (5 C.J.S. 861-863).
8

However, if the lower court had jurisdiction, and the case was heard and
decided upon a given theory, such, for instance, as that the court had no
jurisdiction, the party who induced it to adopt such theory will not be
permitted, on appeal, to assume an inconsistent position that the lower
courthad jurisdiction. Here, the principle of estoppel applies. The rule that
jurisdiction is conferred by law, and does not depend upon the will of the
parties, has nobearing thereon.
Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked
anew the doctrine of estoppel. In this case Alfreda Roberts, together with
Jose Archilla, was charged with bigamy. After pleading not guilty, Roberts,
through his counsel, filed a motion praying that the complaint be quashed
with regard to her on the ground that the facts alleged therein did not
constitute the offense charged for failure to aver that "insofar as Alfreda
Roberts is concerned, her marriage to Jose Luis Archilla was her second
marriage ..." On appeal, the prosecution contended that the trial court erred in
granting the motion to quash, because the complaint was sufficient and at
least charged the accused as an accomplice. The defendant maintained that
even if that were true, the quashing of the information amounted to her
acquittal which prevented the prosecution from taking the said appeal as it
would place her in double jeopardy. Mr. Justice Felix Bautista Angelo,
writing for the majority, ruled that the trial court erred, and proceeded to
emphasize that the accused
... cannot now be allowed to invoke the plea of double jeopardy after
inducing the trial court to commit an error which otherwise it would not have
committed. In other words, appellee can not adopt a posture of double
dealing without running afoul with the doctrine of estoppel. It is well-settled
that the parties to a justiciable proceeding may not, on appeal, adopt a theory
inconsistent with that which they sustained in the lower court (Williams v.
McMicking, 17 Phil. 408; Molina v. Somes, etc.). Consequently, appellee is
now estopped from invoking the plea of double jeopardy upon the theory that
she would still be convicted under an information which she branded to be
insufficient in the lower court.
The accused in this case now before us nevertheless insists that the Salico
doctrine and "necessarily analogous doctrines" were abandoned by this Court
in Bangalao, Labatete, Villarin and Cloribel.
In Bangalao, the complaint filed by the victim's mother alleged that the rape
was committed "by means of force and intimidation" while the information

filed by the fiscal alleged that the offended party was a "minor and demented
girl" and that the defendants "successively had sexual intercourse with her by
means of force and against the will of Rosita Palban." After the accused had
pleaded not guilty, the defense counsel moved for the dismissal of the case on
the ground that the trial court lacked jurisdiction to try the offense of rape
charged by the fiscal since it was distinct from the one alleged in the
complaint which did not aver that the victim was a demented girl". The lower
court sustained the motion and dismissed the case for lack of jurisdiction. On
appeal by the prosecution, this Court held that the trial judge erred in
dismissing the case for lack of jurisdiction, but ruled, however, that the
appeal could not prosper because it placed the accused in double jeopardy.
As the court below had jurisdiction to try the case upon the filing of the
complaint by the mother of the offended party, the defendants-appellees
would be placed in double jeopardy if the appeal is allowed.
After mature analysis, we cannot agree that this Court in Bangalao impliedly
abandoned the Salico doctrine on waiver. Bangalao was decided solely on
the question of jurisdiction. This Court, however, after holding that the lower
tribunal had jurisdiction, decided outright to repress the appeal by the
Government on the ground of double jeopardy without considering whether
the appealed order of dismissal was issued with or without the express
consent of the accused (this aspect of double jeopardy not being in issue).
Hence, the ruling in Salico that the dismissal was with the express consent
of the accused because it was granted upon his instigation thru a motion to
dismiss was not passed upon in Bangalao.
A case of striking factual resemblance with Salico is People vs. Ferrer (100
Phil. 124, October 23, 1956). In this case, after the prosecution had rested, the
accused filed a motion to dismiss on the ground that the territorial jurisdiction
of the trial court had not been published. Acting on this motion, the lower
court dismissed the case. The prosecution appealed. This Court found that the
evidence on record, contrary to the finding of the trial court, amply proved
the jurisdiction of the lower tribunal. However, without the defendant
interposing the plea of double jeopardy, this Court held that "the Government
however meritorious its case cannot appeal the order of dismissal without
violating the right of the defendant not to be placed in double jeopardy."
Again, like in Bangalao, this Court did not consider the nature of dismissal
whether it was with or without the express consent of the defendant.

The accused in the case at bar avers that the Salico doctrine was formally and
expresslyabandoned in People vs. Labatete, supra. In the latter case, the trial
court, upon motion of the defendant, dismissed the original information for
estafa on the ground that it did not allege facts constituting the offense
charged. The information recited that the accused had contracted a loan from
the complainant, giving as security the improvements and products of his
property (a piece of land), without averring that the said property, which was
allegedly mortgaged by the accused to the Rehabilitation Finance
Corporation, formed part of the security. Consequently, the fiscal filed an
amended complaint alleging that the accused also gave as security the land in
question, which he later mortgaged to the damage and prejudice of the
complaining creditor. This amended information was also dismissed upon
motion of the defendant on the ground of double jeopardy. This Court, in
sustaining the appealed order of dismissal, held:
If the amended information were to be admitted, the accused will be deprived
of his defense of double jeopardy because by the amended information he is
sought to be made responsible for the same act of borrowing on a mortgage
for which he had already begun to be tried and acquitted by the dismissal of
the original information.
xxxxxxxxx
... the trial court found that the accused could not be found guilty of any
offense under the information. The judgment entered was not one of dismissal
but of acquittal, and whether the judgment is correct or incorrect, the same
constitutes a bar to the presentation of the amended information sought to be
introduced by the fiscal. (Emphasis supplied)
In not applying the Salico doctrine, this Court, through Mr. Justice Alejo
Labrador, expounded:
... The judgment of the trial court (in People vs. Salico) was in fact an
acquittalbecause of the failure on the part of the fiscal to prove that the crime
was committed within the jurisdiction of the court. The judgment was in fact
a final judgment of acquittal. The mere fact that the accused asked for his
acquittal after trial on the merits (after the prosecution had rested its case) is
no reason for saying that the case was "dismissed" with his express consent
and he may again be subjected to another prosecution.

From the above named statement, it is clear that what in Salico was
repudiated inLabatete was the premise that the dismissal therein was not on
the merits and not theconclusion that a dismissal, other than on the merits,
sought by the accused, is deemed to be with his express consent and therefore
constitutes a waiver of his right to plead double jeopardy in the event of an
appeal by the prosecution or a second indictment for the same offense. This
Court, in Labatete, merely pointed out that the controverted dismissal in
Salico was in fact an acquittal." Reasoning a contrario, had the dismissal not
amounted to acquittal, then the doctrine of waiver would have applied and
prevailed. As a matter of fact we believe with the majority in Salico that the
dismissal therein was not on the merits and therefore did not amount to an
acquittal:
If the prosecution fails to prove that the offense was committed within the
territorial jurisdiction of the court and the case is dismissed, the dismissal is
not an acquittal, inasmuch as if it were so the defendant could not be again
prosecuted for the same offense before a court of competent jurisdiction; and
it is elemental that in such case the defendant may again be prosecuted for the
same offense before a court of competent jurisdiction.
Granting, however, that the Salico doctrine was abandoned in Labatete, it
was resurrected in Desalisa. Moreover, Labatete never mentioned the
doctrine of estoppel enunciated in Acierto which had been repeatedly
reaffirmed.
To bolster his contention that the Salico doctrine has been dropped from the
corpus of our jurisprudence, the accused cites People vs. Villarin, supra. Here
the accused appealed to the Court of First instance his conviction in the
inferior court for acts of lasciviousness with consent. After conducting the
preliminary investigation, the fiscal charged the accused with corruption of
minors. Villarin pleaded not guilty, and before the case could be heard, his
counsel filed a motion to dismiss on the ground that the information did not
allege facts constituting the crime charged. Acting on this motion, the trial
court dismissed the case. On appeal by the prosecution, this Court thru Mr.
Justice Felix Angelo Bautista, held that the dismissal was erroneous, but that
this error
... cannot now be remedied by setting aside the order dismissal of the court a
quoand by remanding the case to it for further proceedings as now suggested
by the prosecution considering that the case was dismissed without the
express consent of the accused even if it was upon the motion of his counsel,

for to do so would place the accused in double jeopardy. The only exception
to the rule on the matter is when the dismissal is with the consent of the
accused, and here this consent has not been obtained. (Emphasis supplied)
Villarin gives the impression, as gleaned from the above statement, that this
Court therein sustained the plea of double jeopardy on the ground that
dismissal was without the express consent of the defendant as it was ordered
"upon the motion of his counsel" and not upon motion of the defendant
himself. This conclusion is rather unfortunate and must be rectified, for the
settled rule is that the acts of counsel in a criminal prosecution bind his client.
Thus, in People vs. Romero (89 Phil. 672, July 31, 1951), this Court held
categorically that
The fact that the counsel for the defendant, and not the defendant himself
personally moved for the dismissal of the case against him, had the same
effect as if the defendant had personally moved for such dismissal, inasmuch
as the act of the counsel in the prosecution of the defendant's cases was the
act of the defendant himself , for the only case in which the defendant cannot
be represented by his counsel is in pleading guilty according to Section 3,
Rule 114, of the Rules of Court. (Emphasis supplied)
On this consideration alone, we cannot agree with the accused in the case at
bar that this Court in Villarin intended to abandon the Salico ruling. Had the
motion to dismiss filed by Villarin's counsel been considered as one made by
the defendant himself, as should have been done, the Villarin case should
have been resolved consistent with the doctrine of waiver in Salico and/or
that of estoppel in Acierto.
As a final citation in support of his theory, the accused in the case at bar
invokes People vs. Clolibel, supra, where this Court, in sustaining the plea of
double jeopardy interposed by the defendants, stated inter alia:
In asserting that Criminal Case No. 45717 may still be reinstated, the
petitioner adopts the ruling once followed by the Court to the effect that a
dismissal upon the defendant's own motion is a dismissal consented to by him
and, consequently, will not be a bar to another prosecution for the same
offense, because, his action in having the case dismissed constitutes a waiver
of his constitutional right or privilege, for the reason that he thereby prevents
the court from proceeding to the trial on the merits and rendering a judgment
of conviction against him. (People v. Salico, 84 Phil. 772) But, this authority
has long been abandoned and the ruling therein expressly repudiated.

Thus, in the case of People v. Robles, G.R. No. L-12761, June 29, 1959,
citing People v. Bangalao, L-5610, February 17, 1954; People v. Diaz, L6518, March 30, 1954; People v. Abano, L-7862, May 17, 1955; and People
v. Ferrer, L-9072, October 23, 1956, We said:
... In reaching the above conclusion, this Court has not overlooked the ruling
in People vs. Salico, 47 O.G. 4765, to the effect that a dismissal upon
defendant's motion will not be a bar to another prosecution for the same
offense as said dismissal was not without the express consent of the
defendant, which ruling the prosecution now invokes in support of its appeal;
but said ruling is not now controlling, having been modified or abandoned in
subsequent cases wherein this Court sustained the theory of double jeopardy
despite the fact that dismissal was secured upon motion of the accused.
(Emphasis supplied)
Also, the rule that a dismissal upon defendant's motion will not be a bar to
another prosecution for the same offense as said dismissal is not without the
express consent of the defendant, has no application to a case where the
dismissal, as here, is predicated on the right of a defendant to a speedy trial.
(People vs. Tacneng, et al., G.R. No. L-12082, April 30, 1959). (emphasis
supplied)
The above statements must be taken in the proper context and perspective. As
previously explained, Bangalao, Ferrer, and even Labatete, did not actually
abandon the doctrine of waiver in Salico (and not one of the said cases even
implied the slightest departure from the doctrine of estoppel established in
Acierto). In Diaz, Abao, Tacnengand Robles which are cited above, like in
Cloribel, the dismissals therein, all sought by the defendants, were considered
acquittals because they were all predicated on the right of a defendant to a
speedy trial and on the failure of the Government to prosecute. Therefore,
even if such dismissals were induced by the accused, the doctrines of waiver
and estoppel were obviously inapplicable for these doctrines presuppose a
dismissal not amounting to an acquittal.
This Court, through Mr. Justice Marceliano Montemayor, held in People vs.
Diaz (94 Phil. 714, March 30, 1954):
Here the prosecution was not even present on the day of trial so as to be in a
position to proceed with the presentation of evidence to prove the guilt of the
accused. The case was set for hearing twice and the prosecution without
asking for postponement or giving any explanation, just failed to appear. So
10

the dismissal of the case, though at the instance of defendant Diaz may,
according to what we said in the Gandicela case, be regarded as an
acquittal. (emphasis supplied)
A similar result was reached by this Court thru Mr. Justice Sabino Padilla, in
People vs. Abano (97 Phil. 28, May 27, 1955), in this wise:
After a perusal of the documents attached to the petition for a writ of
certiorari, we fail to find an abuse of discretion committed by the respondent
judge. He took pains to inquire about the nature of the ailment from which
the complaining witness claimed she was suffering. He continued the trial
three times, to wit: on 27 May, 1 and 12 June. The defendant was entitled to a
speedy trial. When on 15 June, the last day set for the resumption of the trial,
the prosecution failed to secure the continuance thereof and could not
produce further evidence because of the absence of the complaining witness,
the respondent judge was justified in dismissing the case upon motion of the
defense ... The defendant was placed in jeopardy for the offense charged in
the information and the annulment or setting aside of the order of dismissal
would place him twice in jeopardy of punishment for the same offense.
(emphasis supplied)
Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor
Endencia, speaking for a unanimous Court, stressed that
... when criminal case No. 1793 was called for hearing for the third time and
the fiscal was not ready to enter into trial due to the absence of his witnesses,
the herein appellees had the right to object to any further postponement and
to ask for the dismissal of the case by reason of their constitutional right to a
speedy trial; and if pursuant to that objection and petition for dismissal the
case was dismissed, such dismissal ammounted to an acquittal of the herein
appellees which can be invoked, as they did, in a second prosecution for the
same offense. (emphasis supplied)
And this Court proceeded to distinguish the case from People vs. Salico, thus:
We are fully aware that pursuant to our ruling in the case of Peo. v. Salico, 45
O.G. No. 4, 1765-1776, and later reiterated in Peo vs. Romero, L-4517-20,
July 31, 1951, a dismissal upon defendant's motion will not be a bar to
another prosecution for the same offense as said dismissal was not without
the express consent of the defendant. This ruling, however, has no

application to the instant case, since the dismissal in those cases was not
predicated, as in the case at bar, on the right of a defendant to a speedy trial,
but on different grounds. In the Salico case, the dismissal was based on the
ground that the evidence for the prosecution did not show that the crime was
committed within the territorial jurisdiction of the court which, on appeal, we
found that it was, so the case was remanded for further proceedings; and in
the Romero case the dismissal was due to the non-production of other
important witnesses by the prosecution on a date fixed by the court and under
the understanding that no further postponement at the instance of the
government would be entertained. In both cases, the right of a defendant to a
speedy trial was never put in issue. (emphasis supplied)
The gravamen of the foregoing decisions was reiterated in People vs. Robles
(L-12761, June 29, 1959) where the trial court, upon motion of the defendant,
dismissed the case on the ground that the failure of the prosecution to present
its evidence despite several postponements granted at its instance, denied the
accused a speedy trial. In rejecting the appeal of the Government, this Court
held:
In the circumstances, we find no alternative than to hold that the dismissal of
Criminal Case No. 11065 is not provisional in character but one which is
tantamount to acquittal that would bar further prosecution of the accused for
the same offense.

consideration did not terminate the action on the merits, whereas in Cloribel
and in the other related cases the dismissal amounted to an acquittal because
the failure to prosecute presupposed that the Government did not have a case
against the accused, who, in the first place, is presumed innocent.
The application of the sister doctrines of waiver and estoppel requires two
sine qua non conditions: first, the dismissal must be sought or induced by the
defendant personally or through his counsel; and second, such dismissal must
not be on the merits and must not necessarily amount to an acquittal.
Indubitably, the case at bar falls squarely within the periphery of the said
doctrines which have been preserved unimpaired in the corpus of our
jurisprudence.
ACCORDINGLY, the order appealed from is set aside. This case is hereby
remanded to the court of origin for further proceedings in accordance with
law. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Angeles and Fernando, JJ., concur.

In Cloribel, the case dragged for three years and eleven months, that is, from
September 27, 1958 when the information was filed to August 15, 1962 when
it was called for trial, after numerous postponements, mostly at the instance
of the prosecution. On the latter date, the prosecution failed to appear for
trial, and upon motion of defendants, the case was dismissed. This Court held
"that the dismissal here complained of was not truly a 'dismissal' but an
acquittal. For it was entered upon the defendants' insistence on their
constitutional right to speedy trial and by reason of the prosecution's failure
to appear on the date of trial." (Emphasis supplied.)
Considering the factual setting in the case at bar, it is clear that there is no
parallelism between Cloribel and the cases cited therein, on the one hand, and
the instant case, on the other. Here the controverted dismissal was predicated
on the erroneous contention of the accused that the complaint was defective
and such infirmity affected the jurisdiction of the court a quo, and not on the
right of the accused to a speedy trial and the failure of the Government to
prosecute. The appealed order of dismissal in this case now under
11

ANTONIO LEJANO, G.R. No. 176389

Brief Background

Petitioner,

On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen
years old, and Jennifer, seven, were brutally slain at their home in Paraaque
City. Following an intense investigation, the police arrested a group of
suspects, some of whom gave detailed confessions. But the trial court smelled
a frame-up and eventually ordered them discharged. Thus, the identities of
the real perpetrators remained a mystery especially to the public whose
interests were aroused by the gripping details of what everybody referred to
as the Vizconde massacre.

- versus PEOPLE OF THE PHILIPPINES,

Respondent.
x --------------------------------------------- x
PEOPLE OF THE PHILIPPINES, G.R. No. 176864
Appellee
- versus HUBERT JEFFREY P. WEBB,

Four years later in 1995, the National Bureau of Investigation or NBI

announced that it had solved the crime. It presented star-witness Jessica M.
Alfaro, one of its informers, who claimed that she witnessed the crime. She
pointed to accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano,
Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez,
Peter Estrada, Miguel Ging Rodriguez, and Joey Filart as the culprits. She
also tagged accused police officer, Gerardo Biong, as an accessory after the
fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public
prosecutors filed an information for rape with homicide against Webb, et
al.[1]

ANTONIO LEJANO, MICHAEL

A. GATCHALIAN, HOSPICIO
FERNANDEZ, MIGUEL RODRIGUEZ,
PETER ESTRADA and GERARDO Promulgated:
BIONG,
Appellants. December 14, 2010
x ---------------------------------------------------------------------------------------- x
DECISION

The Regional Trial Court of Paraaque City, Branch 274, presided over by
Judge Amelita G. Tolentino, tried only seven of the accused since Artemio
Ventura and Joey Filart remained at large.[2] The prosecution presented
Alfaro as its main witness with the others corroborating her testimony. These
included the medico-legal officer who autopsied the bodies of the victims, the
security guards of Pitong Daan Subdivision, the former laundrywoman of the
Webbs household, police officer Biongs former girlfriend, and Lauro G.
Vizconde, Estrellitas husband.
For their part, some of the accused testified, denying any part in the crime
and saying they were elsewhere when it took place. Webbs alibi appeared the
strongest since he claimed that he was then across the ocean in the United
States of America. He presented the testimonies of witnesses as well as
documentary and object evidence to prove this. In addition, the defense
presented witnesses to show Alfaro's bad reputation for truth and the
incredible nature of her testimony.

ABAD, J.:
But impressed by Alfaros detailed narration of the crime and the events
surrounding it, the trial court found a credible witness in her. It noted her

categorical, straightforward, spontaneous, and frank testimony, undamaged

by grueling cross-examinations. The trial court remained unfazed by
significant discrepancies between Alfaros April 28 and May 22, 1995
affidavits, accepting her explanation that she at first wanted to protect her
former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no
lawyer assisted her; that she did not trust the investigators who helped her
prepare her first affidavit; and that she felt unsure if she would get the
support and security she needed once she disclosed all about the Vizconde
killings.
In contrast, the trial court thought little of the denials and alibis that Webb,
Lejano, Rodriguez, and Gatchalian set up for their defense. They paled,
according to the court, compared to Alfaros testimony that other witnesses
and the physical evidence corroborated. Thus, on January 4, 2000, after four
years of arduous hearings, the trial court rendered judgment, finding all the
accused guilty as charged and imposing on Webb, Lejano, Gatchalian,
Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on
Biong, an indeterminate prison term of eleven years, four months, and one
day to twelve years. The trial court also awarded damages to Lauro
Vizconde.[3]
On appeal, the Court of Appeals affirmed the trial courts decision, modifying
the penalty imposed on Biong to six years minimum and twelve years
maximum and increasing the award of damages to Lauro Vizconde.[4] The
appellate court did not agree that the accused were tried by publicity or that
the trial judge was biased. It found sufficient evidence of conspiracy that
rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with
those who had a part in raping and killing Carmela and in executing her
mother and sister.
On motion for reconsideration by the accused, the Court of Appeals' Special
Division of five members voted three against two to deny the motion,[5]
hence, the present appeal.
On April 20, 2010, as a result of its initial deliberation in this case, the Court
issued a Resolution granting the request of Webb to submit for DNA analysis
the semen specimen taken from Carmelas cadaver, which specimen was then
believed still under the safekeeping of the NBI. The Court granted the request
pursuant to section 4 of the Rule on DNA Evidence[6] to give the accused
and the prosecution access to scientific evidence that they might want to avail
themselves of, leading to a correct decision in the case.
12

Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer
has custody of the specimen, the same having been turned over to the trial
court. The trial record shows, however, that the specimen was not among the
object evidence that the prosecution offered in evidence in the case.
This outcome prompted accused Webb to file an urgent motion to acquit on
the ground that the governments failure to preserve such vital evidence has
resulted in the denial of his right to due process.
Issues Presented
Accused Webbs motion to acquit presents a threshold issue: whether or not
the Court should acquit him outright, given the governments failure to
produce the semen specimen that the NBI found on Carmelas cadaver, thus
depriving him of evidence that would prove his innocence.
In the main, all the accused raise the central issue of whether or not Webb,
acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez,
Ventura, and Filart, raped and killed Carmela and put to death her mother and
sister. But, ultimately, the controlling issues are:
1. Whether or not Alfaros testimony as eyewitness, describing the crime and
identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and
two others as the persons who committed it, is entitled to belief; and
2. Whether or not Webb presented sufficient evidence to prove his alibi and
rebut Alfaros testimony that he led the others in committing the crime.
The issue respecting accused Biong is whether or not he acted to cover up the
crime after its commission.
The Right to Acquittal
Due to Loss of DNA Evidence
Webb claims, citing Brady v. Maryland,[7] that he is entitled to outright
acquittal on the ground of violation of his right to due process given the

States failure to produce on order of the Court either by negligence or willful

suppression the semen specimen taken from Carmela.
The medical evidence clearly established that Carmela was raped and,
consistent with this, semen specimen was found in her. It is true that Alfaro
identified Webb in her testimony as Carmelas rapist and killer but serious
questions had been raised about her credibility. At the very least, there exists
a possibility that Alfaro had lied. On the other hand, the semen specimen
taken from Carmela cannot possibly lie. It cannot be coached or allured by a
promise of reward or financial support. No two persons have the same DNA
fingerprint, with the exception of identical twins.[8] If, on examination, the
DNA of the subject specimen does not belong to Webb, then he did not rape
Carmela. It is that simple. Thus, the Court would have been able to determine
that Alfaro committed perjury in saying that he did.
Still, Webb is not entitled to acquittal for the failure of the State to produce
the semen specimen at this late stage. For one thing, the ruling in Brady v.
Maryland[9] that he cites has long be overtaken by the decision in Arizona v.
Youngblood,[10] where the U.S. Supreme Court held that due process does
not require the State to preserve the semen specimen although it might be
useful to the accused unless the latter is able to show bad faith on the part of
the prosecution or the police. Here, the State presented a medical expert who
testified on the existence of the specimen and Webb in fact sought to have the
same subjected to DNA test.
For, another, when Webb raised the DNA issue, the rule governing DNA
evidence did not yet exist, the country did not yet have the technology for
conducting the test, and no Philippine precedent had as yet recognized its
admissibility as evidence. Consequently, the idea of keeping the specimen
secure even after the trial court rejected the motion for DNA testing did not
come up. Indeed, neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webbs application for DNA
testing, he allowed the proceeding to move on when he had on at least two
occasions gone up to the Court of Appeals or the Supreme Court to challenge
alleged arbitrary actions taken against him and the other accused.[11] They
raised the DNA issue before the Court of Appeals but merely as an error
committed by the trial court in rendering its decision in the case. None of the
accused filed a motion with the appeals court to have the DNA test done
pending adjudication of their appeal. This, even when the Supreme Court had

in the meantime passed the rules allowing such test. Considering the accuseds
lack of interest in having such test done, the State cannot be deemed put on
reasonable notice that it would be required to produce the semen specimen at
some future time.
Now, to the merit of the case.
Alfaros Story
Based on the prosecutions version, culled from the decisions of the trial court
and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening,
Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as
passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu
from Artemio Dong Ventura. There, Ventura introduced her to his friends:
Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Miguel Ging Rodriguez,
Hospicio Pyke Fernandez, Michael Gatchalian, and Joey Filart. Alfaro
recalled frequently seeing them at a shabu house in Paraaque in January
1991, except Ventura whom she had known earlier in December 1990.
As Alfaro smoked her shabu, Webb approached and requested her to relay a
message for him to a girl, whom she later identified as Carmela Vizconde.
Alfaro agreed. After using up their shabu, the group drove to Carmelas house
at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City.
Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a
Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who
were on a Nissan Patrol car.
On reaching their destination, Alfaro parked her car on Vinzons Street,
alighted, and approached Carmelas house. Alfaro pressed the buzzer and a
woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela
twice before in January 1991. When Carmela came out, Alfaro gave her
Webbs message that he was just around. Carmela replied, however, that she
could not go out yet since she had just arrived home. She told Alfaro to return
after twenty minutes. Alfaro relayed this to Webb who then told the group to
drive back to the Ayala Alabang Commercial Center.
The group had another shabu session at the parking lot. After sometime, they
drove back but only Alfaro proceeded to Vinzons Street where Carmela
lived. The Nissan Patrol and the Mazda pick-up, with their passengers,
parked somewhere along Aguirre Avenue. Carmela was at their garden. She
13

approached Alfaro on seeing her and told the latter that she (Carmela) had to
leave the house for a while. Carmela requested Alfaro to return before
midnight and she would leave the pedestrian gate, the iron grills that led to
the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink
her cars headlights twice when she approached the pedestrian gate so
Carmela would know that she had arrived.
Alfaro returned to her car but waited for Carmela to drive out of the house in
her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped
off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for
her group, found them, and relayed Carmelas instructions to Webb. They
then all went back to the Ayala Alabang Commercial Center. At the parking
lot, Alfaro told the group about her talk with Carmela. When she told Webb
of Carmelas male companion, Webbs mood changed for the rest of the
evening (bad trip).
Webb gave out free cocaine. They all used it and some shabu, too. After
about 40 to 45 minutes, Webb decided that it was time for them to leave. He
said, Pipilahan natin siya [Carmela] at ako ang mauuna. Lejano said, Ako ang
susunod and the others responded Okay, okay. They all left the parking lot in
a convoy of three vehicles and drove into Pitong Daan Subdivision for the
third time. They arrived at Carmelas house shortly before midnight.
Alfaro parked her car between Vizcondes house and the next. While waiting
for the others to alight from their cars, Fernandez approached Alfaro with a
suggestion that they blow up the transformer near the Vizcondes residence to
cause a brownout (Pasabugin kaya natin ang transformer na ito). But Alfaro
shrugged off the idea, telling Fernandez, Malakas lang ang tama mo. When
Webb, Lejano, and Ventura were already before the house, Webb told the
others again that they would line up for Carmela but he would be the first.
The others replied, O sige, dito lang kami, magbabantay lang kami.
Alfaro was the first to pass through the pedestrian gate that had been left
open. Webb, Lejano, and Ventura followed her. On entering the garage,
Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and
loosened the electric bulb over it (para daw walang ilaw). The small group
went through the open iron grill gate and passed the dirty kitchen. Carmela
opened the aluminum screen door of the kitchen for them. She and Webb
looked each other in the eyes for a moment and, together, headed for the
dining area.

As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano
asked her where she was going and she replied that she was going out to
smoke. As she eased her way out through the kitchen door, she saw Ventura
pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After
about twenty minutes, she was surprised to hear a womans voice ask, Sino
yan? Alfaro immediately walked out of the garden to her car. She found her
other companions milling around it. Estrada who sat in the car asked her,
Okay ba?
After sitting in the car for about ten minutes, Alfaro returned to the Vizconde
house, using the same route. The interior of the house was dark but some
light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a
ladys bag that lay on the dining table. When she asked him what he was
looking for, he said: Ikaw na nga dito, maghanap ka ng susi. She asked him
what key he wanted and he replied: Basta maghanap ka ng susi ng main door
pati na rin ng susi ng kotse. When she found a bunch of keys in the bag, she
tried them on the main door but none fitted the lock. She also did not find the
car key.
Unable to open the main door, Alfaro returned to the kitchen. While she was
at a spot leading to the dining area, she heard a static noise (like a television
that remained on after the station had signed off). Out of curiosity, she
approached the masters bedroom from where the noise came, opened the
door a little, and peeked inside. The unusual sound grew even louder. As she
walked in, she saw Webb on top of Carmela while she lay with her back on
the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the
bed about to wear his jacket. Carmela was gagged, moaning, and in tears
while Webb raped her, his bare buttocks exposed.
Webb gave Alfaro a meaningful look and she immediately left the room. She
met Ventura at the dining area. He told her, Prepare an escape. Aalis na tayo.
Shocked with what she saw, Alfaro rushed out of the house to the others who
were either sitting in her car or milling on the sidewalk. She entered her car
and turned on the engine but she did not know where to go. Webb, Lejano,
and Ventura came out of the house just then. Webb suddenly picked up a
stone and threw it at the main door, breaking its glass frame.
As the three men approached the pedestrian gate, Webb told Ventura that he
forgot his jacket in the house. But Ventura told him that they could not get in
anymore as the iron grills had already locked. They all rode in their cars and
drove away until they reached Aguirre Avenue. As they got near an old hotel

at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down.
Someone threw something out of the car into the cogonal area.
The convoy of cars went to a large house with high walls, concrete fence,
steel gate, and a long driveway at BF Executive Village. They entered the
compound and gathered at the lawn where the blaming session took place. It
was here that Alfaro and those who remained outside the Vizconde house
learned of what happened. The first to be killed was Carmelas mother, then
Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, Bakit
naman pati yung bata? Webb replied that the girl woke up and on seeing him
molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair.
Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly
stabbed her. Lejano excused himself at this point to use the telephone in the
house. Meanwhile, Webb called up someone on his cellular phone.
At around 2:00 in the morning, accused Gerardo Biong arrived. Webb
ordered him to go and clean up the Vizconde house and said to him, Pera
lang ang katapat nyan. Biong answered, Okay lang. Webb spoke to his
companions and told them, We dont know each other. We havent seen each
otherbaka maulit yan. Alfaro and Estrada left and they drove to her fathers
house.[12]
1. The quality of the witness
Was Alfaro an ordinary subdivision girl who showed up at the NBI after four
years, bothered by her conscience or egged on by relatives or friends to come
forward and do what was right? No. She was, at the time she revealed her
story, working for the NBI as an asset, a stool pigeon, one who earned her
living by fraternizing with criminals so she could squeal on them to her NBI
handlers. She had to live a life of lies to get rewards that would pay for her
subsistence and vices.
According to Atty. Artemio Sacaguing, former head of the NBI AntiKidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section,
Alfaro had been hanging around at the NBI since November or December
1994 as an asset. She supplied her handlers with information against drug
pushers and other criminal elements. Some of this information led to the
capture of notorious drug pushers like Christopher Cruz Santos and Orlando
Bacquir. Alfaros tip led to the arrest of the leader of the Martilyo gang that
killed a police officer. Because of her talent, the task force gave her very
14

special treatment and she became its darling, allowed the privilege of
spending nights in one of the rooms at the NBI offices.

WITNESS SACAGUING:

Q. All right, and what was your reaction when Ms. Alfaro stated that
papapelan ko na lang yan?

A. No, sir.
When Alfaro seemed unproductive for sometime, however, they teased her
about it and she was piqued. One day, she unexpectedly told Sacaguing that
she knew someone who had the real story behind the Vizconde massacre.
Sacaguing showed interest. Alfaro promised to bring that someone to the NBI
to tell his story. When this did not happen and Sacaguing continued to press
her, she told him that she might as well assume the role of her informant.
Sacaguing testified thus:

WITNESS SACAGUING:
ATTY. ONGKIKO:
A. I said, hindi puwede yan, kasi hindi ka naman eye witness.
Q. Why not?
ATTY. ONGKIKO:
WITNESS SACAGUING:
Q. And what was the reply of Ms. Alfaro?

ATTY. ONGKIKO:
Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde
murder case? Will you tell the Honorable Court?

A. Because Jessica Alfaro was never able to comply with her promise to
bring the man to me. She told me later that she could not and the man does
not like to testify.

WITNESS SACAGUING:
A. Hindi siya nakakibo, until she went away.

ATTY. ONGKIKO:
xxxx

(TSN, May 28, 1996, pp. 49-50, 58, 77-79)

Q. All right, and what happened after that?

A. She told me. Your Honor, that she knew somebody who related to her the
circumstances, I mean, the details of the massacre of the Vizconde family.
Thats what she told me, Your Honor.

Quite significantly, Alfaro never refuted Sacaguings above testimony.

WITNESS SACAGUING:
2. The suspicious details

ATTY. ONGKIKO:
Q. And what did you say?
xxxx
A. I was quite interested and I tried to persuade her to introduce to me that
man and she promised that in due time, she will bring to me the man, and
together with her, we will try to convince him to act as a state witness and
help us in the solution of the case.

A. She told me, easy lang kayo, Sir, if I may quote, easy lang Sir, huwag
kayong
COURT:
How was that?
WITNESS SACAGUING:
A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang
yan.

xxxx
xxxx
Q. Atty. Sacaguing, were you able to interview this alleged witness?
ATTY. ONGKIKO:

But was it possible for Alfaro to lie with such abundant details some of which
even tallied with the physical evidence at the scene of the crime? No doubt,
yes.
Firstly, the Vizconde massacre had been reported in the media with dizzying
details. Everybody was talking about what the police found at the crime scene
and there were lots of speculations about them.
Secondly, the police had arrested some akyat-bahay group in Paraaque and
charged them with the crime. The police prepared the confessions of the men
they apprehended and filled these up with details that the evidence of the
crime scene provided. Alfaros NBI handlers who were doing their own
investigation knew of these details as well. Since Alfaro hanged out at the
NBI offices and practically lived there, it was not too difficult for her to hear
of these evidentiary details and gain access to the documents.
15

Not surprisingly, the confessions of some members of the Barroso akyat

bahay gang, condemned by the Makati RTC as fabricated by the police to pin
the crime on them, shows how crime investigators could make a confession
ring true by matching some of its details with the physical evidence at the
crime scene. Consider the following:
a. The Barroso gang members said that they got into Carmelas house by
breaking the glass panel of the front door using a stone wrapped in cloth to
deaden the noise. Alfaro could not use this line since the core of her story
was that Webb was Carmelas boyfriend. Webb had no reason to smash her
front door to get to see her.
Consequently, to explain the smashed door, Alfaro had to settle for claiming
that, on the way out of the house, Webb picked up some stone and, out of the
blue, hurled it at the glass-paneled front door of the Vizconde residence. His
action really made no sense. From Alfaros narration, Webb appeared rational
in his decisions. It was past midnight, the house was dark, and they wanted to
get away quickly to avoid detection. Hurling a stone at that glass door and
causing a tremendous noise was bizarre, like inviting the neighbors to come.
b. The crime scene showed that the house had been ransacked. The rejected
confessions of the Barroso akyat-bahay gang members said that they tried to
rob the house. To explain this physical evidence, Alfaro claimed that at one
point Ventura was pulling a kitchen drawer, and at another point, going
through a handbag on the dining table. He said he was looking for the frontdoor key and the car key.
Again, this portion of Alfaros story appears tortured to accommodate the
physical evidence of the ransacked house. She never mentioned Ventura
having taken some valuables with him when they left Carmelas house. And
why would Ventura rummage a bag on the table for the front-door key,
spilling the contents, when they had already gotten into the house. It is a story
made to fit in with the crime scene although robbery was supposedly not the
reason Webb and his companions entered that house.
c. It is the same thing with the garage light. The police investigators found
that the bulb had been loosened to turn off the light. The confessions of the
Barroso gang claimed that one of them climbed the parked cars hood to reach
up and darken that light. This made sense since they were going to rob the
place and they needed time to work in the dark trying to open the front door.
Some passersby might look in and see what they were doing.

Alfaro had to adjust her testimony to take into account that darkened garage
light. So she claimed that Ventura climbed the cars hood, using a chair, to
turn the light off. But, unlike the Barroso akyat-bahay gang, Webb and his
friends did not have anything to do in a darkened garage. They supposedly
knew in advance that Carmela left the doors to the kitchen open for them. It
did not make sense for Ventura to risk standing on the cars hood and be seen
in such an awkward position instead of going straight into the house.

One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez,

and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro
made it a point to testify that Webb proposed twice to his friends the gangrape of Carmela who had hurt him. And twice, they (including, if one
believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his
proposal. But when they got to Carmelas house, only Webb, Lejano, Ventura,
and Alfaro entered the house.

And, thirdly, Alfaro was the NBIs star witness, their badge of excellent
investigative work. After claiming that they had solved the crime of the
decade, the NBI people had a stake in making her sound credible and,
obviously, they gave her all the preparations she needed for the job of
becoming a fairly good substitute witness. She was their darling of an asset.
And this is not pure speculation. As pointed out above, Sacaguing of the NBI,
a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial
court and the Court of Appeals failed to see this is mystifying.

Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around

Alfaros car, which was parked on the street between Carmelas house and the
next. Some of these men sat on top of the cars lid while others milled on the
sidewalk, visible under the street light to anyone who cared to watch them,
particularly to the people who were having a drinking party in a nearby
house. Obviously, the behavior of Webbs companions out on the street did
not figure in a planned gang-rape of Carmela.

At any rate, did Alfaro at least have a fine memory for faces that had a strong
effect on her, given the circumstances? Not likely. She named Miguel Ging
Rodriguez as one of the culprits in the Vizconde killings. But when the NBI
found a certain Michael Rodriguez, a drug dependent from the Bicutan
Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and
showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking
Michael, exclaiming: How can I forget your face. We just saw each other in a
disco one month ago and you told me then that you will kill me. As it turned
out, he was not Miguel Rodriguez, the accused in this case.[13]
Two possibilities exist: Michael was really the one Alfaro wanted to
implicate to settle some score with him but it was too late to change the name
she already gave or she had myopic vision, tagging the wrong people for
what they did not do.
3. The quality of the testimony
There is another thing about a lying witness: her story lacks sense or suffers
from inherent inconsistencies. An understanding of the nature of things and
the common behavior of people will help expose a lie. And it has an abundant
presence in this case.

Two. Ventura, Alfaros dope supplier, introduced her for the first time in her
life to Webb and his friends in a parking lot by a mall. So why would she
agree to act as Webbs messenger, using her gas, to bring his message to
Carmela at her home. More inexplicably, what motivated Alfaro to stick it
out the whole night with Webb and his friends?
They were practically strangers to her and her boyfriend Estrada. When it
came to a point that Webb decided with his friends to gang-rape Carmela,
clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as
a police asset would, hanging in there until she had a crime to report, only she
was not yet an asset then. If, on the other hand, Alfaro had been too soaked in
drugs to think clearly and just followed along where the group took her, how
could she remember so much details that only a drug-free mind can?
Three. When Alfaro went to see Carmela at her house for the second time,
Carmella told her that she still had to go out and that Webb and his friends
should come back around midnight. Alfaro returned to her car and waited for
Carmela to drive out in her own car. And she trailed her up to Aguirre
Avenue where she supposedly dropped off a man whom she thought was
Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to
Webb did not make sense since she was on limited errand. But, as a critical
witness, Alfaro had to provide a reason for Webb to freak out and decide to
come with his friends and harm Carmela.

16

Four. According to Alfaro, when they returned to Carmelas house the third
time around midnight, she led Webb, Lejano, and Ventura through the
pedestrian gate that Carmela had left open. Now, this is weird. Webb was the
gang leader who decided what they were going to do. He decided and his
friends agreed with him to go to Carmelas house and gang-rape her. Why
would Alfaro, a woman, a stranger to Webb before that night, and obviously
with no role to play in the gang-rape of Carmela, lead him and the others into
her house? It made no sense. It would only make sense if Alfaro wanted to
feign being a witness to something she did not see.
Five. Alfaro went out of the house to smoke at the garden. After about twenty
minutes, a woman exclaimed, Sino yan? On hearing this, Alfaro immediately
walked out of the garden and went to her car. Apparently, she did this
because she knew they came on a sly. Someone other than Carmela became
conscious of the presence of Webb and others in the house. Alfaro walked
away because, obviously, she did not want to get involved in a potential
confrontation. This was supposedly her frame of mind: fear of getting
involved in what was not her business.
But if that were the case, how could she testify based on personal knowledge
of what went on in the house? Alfaro had to change that frame of mind to one
of boldness and reckless curiosity. So that is what she next claimed. She went
back into the house to watch as Webb raped Carmela on the floor of the
masters bedroom. He had apparently stabbed to death Carmelas mom and her
young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro
testified that she got scared (another shift to fear) for she hurriedly got out of
the house after Webb supposedly gave her a meaningful look.
Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada,
Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did
not speak to them, even to Estrada, her boyfriend. She entered her car and
turned on the engine but she testified that she did not know where to go. This
woman who a few minutes back led Webb, Lejano, and Ventura into the
house, knowing that they were decided to rape and harm Carmela, was
suddenly too shocked to know where to go! This emotional pendulum swing
indicates a witness who was confused with her own lies.
4. The supposed corroborations
Intending to provide corroboration to Alfaros testimony, the prosecution
presented six additional witnesses:

Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied

the bodies of the victims, testified on the stab wounds they sustained[14] and
the presence of semen in Carmelas genitalia,[15] indicating that she had been
raped.
Normal E. White, Jr., was the security guard on duty at Pitong Daan
Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a
report on the morning of June 30 that something untoward happened at the
Vizconde residence. He went there and saw the dead bodies in the masters
bedroom, the bag on the dining table, as well as the loud noise emanating
from a television set.[16]
White claimed that he noticed Gatchalian and his companions, none of whom
he could identify, go in and out of Pitong Daan Subdivision. He also saw
them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a
three-car convoy. White could not, however, describe the kind of vehicles
they used or recall the time when he saw the group in those two instances.
And he did not notice anything suspicious about their coming and going.
But Whites testimony cannot be relied on. His initial claim turned out to be
inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan
Subdivision only once. They were not going in and out. Furthermore, Alfaro
testified that when the convoy of cars went back the second time in the
direction of Carmelas house, she alone entered the subdivision and passed the
guardhouse without stopping. Yet, White who supposedly manned that
guardhouse did not notice her.
Surprisingly, White failed to note Biong, a police officer, entering or exiting
the subdivision on the early morning of June 30 when he supposedly cleaned
up Vizconde residence on Webbs orders. What is more, White did not notice
Carmela arrive with her mom before Alfaros first visit that night. Carmela
supposedly left with a male companion in her car at around 10:30 p.m. but
White did not notice it. He also did not notice Carmela reenter the
subdivision. White actually discredited Alfaros testimony about the
movements of the persons involved.
Further, while Alfaro testified that it was the Mazda pick-up driven by Filart
that led the three-vehicle convoy,[17] White claimed it was the Nissan Patrol
with Gatchalian on it that led the convoy since he would not have let the
convoy in without ascertaining that Gatchalian, a resident, was in it. Security
guard White did not, therefore, provide corroboration to Alfaros testimony.

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified

that he saw Webb around the last week of May or the first week of June 1991
to prove his presence in the Philippines when he claimed to be in the United
States. He was manning the guard house at the entrance of the subdivision of
Pitong Daan when he flagged down a car driven by Webb. Webb said that he
would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his
United BF Homes sticker and said that he resided there. Cabanacan replied,
however, that Pitong Daan had a local sticker.

Cabanacan testified that, at this point, Webb introduced himself as the son of
Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb
grudgingly gave it and after seeing the picture and the name on it, Cabanacan
returned the same and allowed Webb to pass without being logged in as their
Standard Operating Procedure required.[18]
But Cabanacan's testimony could not be relied on. Although it was not
common for a security guard to challenge a Congressmans son with such
vehemence, Cabanacan did not log the incident on the guardhouse book. Nor
did he, contrary to prescribed procedure, record the visitors entry into the
subdivision. It did not make sense that Cabanacan was strict in the matter of
seeing Webbs ID but not in recording the visit.
Mila Gaviola used to work as laundry woman for the Webbs at their house at
BF Homes Executive Village. She testified that she saw Webb at his parents
house on the morning of June 30, 1991 when she got the dirty clothes from
the room that he and two brothers occupied at about 4.a.m. She saw him
again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt
and shorts, passing through a secret door near the maids quarters on the way
out. Finally, she saw Webb at 4 p.m. of the same day.[19]
On cross-examination, however, Gaviola could not say what distinguished
June 30, 1991 from the other days she was on service at the Webb household
as to enable her to distinctly remember, four years later, what one of the
Webb boys did and at what time. She could not remember any of the details
that happened in the household on the other days. She proved to have a
selective photographic memory and this only damaged her testimony.

17

Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30,

1991 she noticed bloodstains on Webb's t-shirt.[20] She did not call the
attention of anybody in the household about it when it would have been a
point of concern that Webb may have been hurt, hence the blood.
Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May
1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that
Gaviola worked for the Webbs only from January 1991 to April 1991.
Ventoso further testified that it was not Gaviola's duty to collect the clothes
from the 2nd floor bedrooms, this being the work of the housemaid charged
with cleaning the rooms.

What is more, it was most unlikely for a laundrywoman who had been there
for only four months to collect, as she claimed, the laundry from the rooms of
her employers and their grown up children at four in the morning while they
were asleep.
And it did not make sense, if Alfaros testimony were to be believed that
Webb, who was so careful and clever that he called Biong to go to the
Vizconde residence at 2 a.m. to clean up the evidence against him and his
group, would bring his bloodied shirt home and put it in the hamper for
laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed
habit.
Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde
massacre took place. Birrer testified that she was with Biong playing
mahjong from the evening of June 29, 1991 to the early morning of June 30,
when Biong got a call at around 2 a.m. This prompted him, according to De
Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked
him up. When Biong returned at 7 a.m. he washed off what looked like dried
blood from his fingernails. And he threw away a foul-smelling handkerchief.
She also saw Biong take out a knife with aluminum cover from his drawer
and hid it in his steel cabinet.[21]
The security guard at Pitong Daan did not notice any police investigator
flashing a badge to get into the village although Biong supposedly came in at
the unholy hour of two in the morning. His departure before 7 a.m. also
remained unnoticed by the subdivision guards. Besides, if he had cleaned up

the crime scene shortly after midnight, what was the point of his returning
there on the following morning to dispose of some of the evidence in the
presence of other police investigators and on-lookers? In fact, why would he
steal valuable items from the Vizconde residence on his return there hours
later if he had the opportunity to do it earlier?
At most, Birrers testimony only established Biongs theft of certain items
from the Vizconde residence and gross neglect for failing to maintain the
sanctity of the crime scene by moving around and altering the effects of the
crime. Birrers testimony failed to connect Biong's acts to Webb and the other
accused.
Lauro Vizconde testified about how deeply he was affected by the loss of her
wife and two daughters. Carmella spoke to him of a rejected suitor she called
Bagyo, because he was a Paraaque politicians son. Unfortunately, Lauro did
not appear curious enough to insist on finding out who the rejected fellow
was. Besides, his testimony contradicts that of Alfaro who testified that
Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be
believed, Carmela wanted Webb to come to her house around midnight. She
even left the kitchen door open so he could enter the house.
5. The missing corroboration
There is something truly remarkable about this case: the prosecutions core
theory that Carmela and Webb had been sweethearts, that she had been
unfaithful to him, and that it was for this reason that Webb brought his
friends to her house to gang-rape her is totally uncorroborated!
For instance, normally, if Webb, a Congressmans son, courted the young
Carmela, that would be news among her circle of friends if not around town.
But, here, none of her friends or even those who knew either of them came
forward to affirm this. And if Webb hanged around with her, trying to win
her favors, he would surely be seen with her. And this would all the more be
so if they had become sweethearts, a relation that Alfaro tried to project with
her testimony.
But, except for Alfaro, the NBI asset, no one among Carmelas friends or her
friends friends would testify ever hearing of such relationship or ever seeing
them together in some popular hangouts in Paraaque or Makati. Alfaros claim
of a five-hour drama is like an alien page, rudely and unconnectedly inserted

into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed
to fit into the shape on the board but does not belong because it clashes with
the surrounding pieces. It has neither antecedent nor concomitant support in
the verifiable facts of their personal histories. It is quite unreal.
What is more, Alfaro testified that she saw Carmela drive out of her house
with a male passenger, Mr. X, whom Alfaro thought the way it looked was
also Carmelas lover. This was the all-important reason Webb supposedly had
for wanting to harm her. Again, none of Carmelas relatives, friends, or people
who knew her ever testified about the existence of Mr.X in her life. Nobody
has come forward to testify having ever seen him with Carmela. And despite
the gruesome news about her death and how Mr. X had played a role in it, he
never presented himself like anyone who had lost a special friend normally
would. Obviously, Mr. X did not exist, a mere ghost of the imagination of
Alfaro, the woman who made a living informing on criminals.
Webbs U.S. Alibi
Among the accused, Webb presented the strongest alibi.
a. The travel preparations
Webb claims that in 1991 his parents, Senator Freddie Webb and his wife,
Elizabeth, sent their son to the United States (U.S.) to learn the value of
independence, hard work, and money.[22] Gloria Webb, his aunt,
accompanied him. Rajah Tours booked their flight to San Francisco via
United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and
his aunt used their plane tickets.
Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and
his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even
invited them to his despedida party on March 8, 1991 at Faces Disco along
Makati Ave.[23] On March 8,1991, the eve of his departure, he took
girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema
Square. His basketball buddy Rafael Jose with Tina Calma, a blind date
arranged by Webb, joined them. They afterwards went to Faces Disco for
Webb's despedida party. Among those present were his friends Paulo Santos
and Jay Ortega.[24]
b. The two immigration checks
18

The following day, March 9, 1991, Webb left for San Francisco, California,
with his Aunt Gloria on board United Airlines Flight 808.[25] Before
boarding his plane, Webb passed through the Philippine Immigration booth at
the airport to have his passport cleared and stamped. Immigration Officer,
Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport,
and let him pass through.[26] He was listed on the United Airlines Flights
Passenger Manifest.[27]
On arrival at San Francisco, Webb went through the U.S. Immigration where
his entry into that country was recorded. Thus, the U.S. Immigration
Naturalization Service, checking with its Non-immigrant Information
System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb
presented at the trial the INS Certification issued by the U.S. Immigration
and Naturalization Service,[28] the computer-generated print-out of the USINS indicating Webb's entry on March 9, 1991,[29] and the US-INS
Certification dated August 31, 1995, authenticated by the Philippine
Department of Foreign Affairs, correcting an earlier August 10, 1995
Certification.[30]
c. Details of U.S. sojourn
In San Francisco, Webb and his aunt Gloria were met by the latters daughter,
Maria Teresa Keame, who brought them to Glorias house in Daly City,
California. During his stay with his aunt, Webb met Christopher Paul Legaspi
Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain
Daphne Domingo watched the concert of Deelite Band in San Francisco.[31]
In the same month, Dorothy Wheelock and her family invited Webb to Lake
Tahoe to return the Webbs hospitality when she was in the Philippines.[32]
In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to
Anaheim Hills, California.[33] During his stay there, he occupied himself
with playing basketball once or twice a week with Steven Keeler[34] and
working at his cousin-in-laws pest control company.[35] Webb presented the
companys logbook showing the tasks he performed,[36] his paycheck,[37]
his ID, and other employment papers. On June 14, 1991 he applied for a
driver's license[38] and wrote three letters to his friend Jennifer Cabrera.[39]
On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the
Brottmans. On the same day, his father introduced Honesto Aragon to his son
when he came to visit.[40] On the following day, June 29, Webb, in the
company of his father and Aragon went to Riverside, California, to look for a

car. They bought an MR2 Toyota car.[41] Later that day, a visitor at the
Brottmans, Louis Whittacker, saw Webb looking at the plates of his new
car.[42] To prove the purchase, Webb presented the Public Records of
California Department of Motor Vehicle[43] and a car plate LEW
WEBB.[44] In using the car in the U.S., Webb even received traffic
citations.[45]
On June 30, 1991 Webb, again accompanied by his father and Aragon,[46]
bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a
receipt dated June 30, 1991.[48] On July 4, 1991, Independence Day, the
Webbs, the Brottmans, and the Vaca family had a lakeside picnic.[49]
Webb stayed with the Brottmans until mid July and rented a place for less
than a month. On August 4, 1991 he left for Longwood, Florida, to stay with
the spouses Jack and Sonja Rodriguez.[50] There, he met Armando
Rodriguez with whom he spent time, playing basketball on weekends,
watching movies, and playing billiards.[51] In November 1991, Webb met
performing artist Gary Valenciano, a friend of Jack Rodriguez, who was
invited for a dinner at the Rodriguezs house.[52] He left the Rodriguezs home
in August 1992, returned to Anaheim and stayed with his aunt Imelda
Pagaspas. He stayed there until he left for the Philippines on October 26,
1992.
d. The second immigration checks
As with his trip going to the U.S., Webb also went through both the U.S. and
Philippine immigrations on his return trip. Thus, his departure from the U.S.
was confirmed by the same certifications that confirmed his entry.[53]
Furthermore, a Diplomatic Note of the U.S. Department of State with
enclosed letter from Acting Director Debora A. Farmer of the Records
Operations, Office of Records of the US-INS stated that the Certification
dated August 31, 1995 is a true and accurate statement. And when he boarded
his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,[54]
certified by Agnes Tabuena[55] confirmed his return trip.
When he arrived in Manila, Webb again went through the Philippine
Immigration. In fact, the arrival stamp and initial on his passport indicated his
return to Manila on October 27, 1992. This was authenticated by Carmelita
Alipio, the immigration officer who processed Webbs reentry.[56] Upon his
return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael

Jose once again saw Webb playing basketball at the BF's Phase III basketball
court.
e. Alibi versus positive identification
The trial court and the Court of Appeals are one in rejecting as weak Webbs
alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros
positive identification of him as the rapist and killer of Carmela and,
apparently, the killer as well of her mother and younger sister. Because of
this, to the lower courts, Webbs denial and alibi were fabricated.
But not all denials and alibis should be regarded as fabricated. Indeed, if the
accused is truly innocent, he can have no other defense but denial and alibi.
So how can such accused penetrate a mind that has been made cynical by the
rule drilled into his head that a defense of alibi is a hangmans noose in the
face of a witness positively swearing, I saw him do it.? Most judges believe
that such assertion automatically dooms an alibi which is so easy to fabricate.
This quick stereotype thinking, however, is distressing. For how else can the
truth that the accused is really innocent have any chance of prevailing over
such a stone-cast tenet?
There is only one way. A judge must keep an open mind. He must guard
against slipping into hasty conclusion, often arising from a desire to quickly
finish the job of deciding a case. A positive declaration from a witness that he
saw the accused commit the crime should not automatically cancel out the
accuseds claim that he did not do it. A lying witness can make as positive an
identification as a truthful witness can. The lying witness can also say as
forthrightly and unequivocally, He did it! without blinking an eye.
Rather, to be acceptable, the positive identification must meet at least two
criteria:
First, the positive identification of the offender must come from a credible
witness. She is credible who can be trusted to tell the truth, usually based on
past experiences with her. Her word has, to one who knows her, its weight in
gold.
And second, the witness story of what she personally saw must be believable,
not inherently contrived. A witness who testifies about something she never
saw runs into inconsistencies and makes bewildering claims.
19

Here, as already fully discussed above, Alfaro and her testimony fail to meet
the above criteria.
She did not show up at the NBI as a spontaneous witness bothered by her
conscience. She had been hanging around that agency for sometime as a stool
pigeon, one paid for mixing up with criminals and squealing on them. Police
assets are often criminals themselves. She was the prosecutions worst
possible choice for a witness. Indeed, her superior testified that she
volunteered to play the role of a witness in the Vizconde killings when she
could not produce a man she promised to the NBI.
And, although her testimony included details, Alfaro had prior access to the
details that the investigators knew of the case. She took advantage of her
familiarity with these details to include in her testimony the clearly
incompatible act of Webb hurling a stone at the front door glass frames even
when they were trying to slip away quietlyjust so she can accommodate this
crime scene feature. She also had Ventura rummaging a bag on the dining
table for a front door key that nobody needed just to explain the physical
evidence of that bag and its scattered contents. And she had Ventura climbing
the cars hood, risking being seen in such an awkward position, when they did
not need to darken the garage to force open the front doorjust so to explain
the darkened light and foot prints on the car hood.
Further, her testimony was inherently incredible. Her story that Gatchalian,
Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping
Carmela is incongruent with their indifference, exemplified by remaining
outside the house, milling under a street light, visible to neighbors and
passersby, and showing no interest in the developments inside the house, like
if it was their turn to rape Carmela. Alfaros story that she agreed to serve as
Webbs messenger to Carmela, using up her gas, and staying with him till the
bizarre end when they were practically strangers, also taxes incredulity.
To provide basis for Webbs outrage, Alfaro said that she followed Carmela to
the main road to watch her let off a lover on Aguirre Avenue. And,
inexplicably, although Alfaro had only played the role of messenger, she
claimed leading Webb, Lejano, and Ventura into the house to gang-rape
Carmella, as if Alfaro was establishing a reason for later on testifying on
personal knowledge. Her swing from an emotion of fear when a woman woke
up to their presence in the house and of absolute courage when she
nonetheless returned to become the lone witness to a grim scene is also quite
inexplicable.

Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently

unbelievable, testimony cannot be the positive identification that
jurisprudence acknowledges as sufficient to jettison a denial and an alibi.
f. A documented alibi
To establish alibi, the accused must prove by positive, clear, and satisfactory
evidence[57] that (a) he was present at another place at the time of the
perpetration of the crime, and (b) that it was physically impossible for him to
be at the scene of the crime.[58]
The courts below held that, despite his evidence, Webb was actually in
Paraaque when the Vizconde killings took place; he was not in the U.S. from
March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he
actually returned before June 29, 1991, committed the crime, erased the fact
of his return to the Philippines from the records of the U.S. and Philippine
Immigrations, smuggled himself out of the Philippines and into the U.S., and
returned the normal way on October 27, 1992. But this ruling practically
makes the death of Webb and his passage into the next life the only
acceptable alibi in the Philippines. Courts must abandon this unjust and
inhuman paradigm.
If one is cynical about the Philippine system, he could probably claim that
Webb, with his fathers connections, can arrange for the local immigration to
put a March 9, 1991 departure stamp on his passport and an October 27, 1992
arrival stamp on the same. But this is pure speculation since there had been
no indication that such arrangement was made. Besides, how could Webb fix
a foreign airlines passenger manifest, officially filed in the Philippines and at
the airport in the U.S. that had his name on them? How could Webb fix with
the U.S. Immigrations record system those two dates in its record of his
travels as well as the dates when he supposedly departed in secret from the
U.S. to commit the crime in the Philippines and then return there? No one has
come up with a logical and plausible answer to these questions.
The Court of Appeals rejected the evidence of Webbs passport since he did
not leave the original to be attached to the record. But, while the best
evidence of a document is the original, this means that the same is exhibited
in court for the adverse party to examine and for the judge to see. As Court of
Appeals Justice Tagle said in his dissent,[59] the practice when a party does
not want to leave an important document with the trial court is to have a
photocopy of it marked as exhibit and stipulated among the parties as a

faithful reproduction of the original. Stipulations in the course of trial are

binding on the parties and on the court.
The U.S. Immigration certification and the computer print-out of Webbs
arrival in and departure from that country were authenticated by no less than
the Office of the U.S. Attorney General and the State Department. Still the
Court of Appeals refused to accept these documents for the reason that Webb
failed to present in court the immigration official who prepared the same. But
this was unnecessary. Webbs passport is a document issued by the Philippine
government, which under international practice, is the official record of
travels of the citizen to whom it is issued. The entries in that passport are
presumed true.[60]
The U.S. Immigration certification and computer print-out, the official
certifications of which have been authenticated by the Philippine Department
of Foreign Affairs, merely validated the arrival and departure stamps of the
U.S. Immigration office on Webbs passport. They have the same evidentiary
value. The officers who issued these certifications need not be presented in
court to testify on them. Their trustworthiness arises from the sense of official
duty and the penalty attached to a breached duty, in the routine and
disinterested origin of such statement and in the publicity of the record.[61]
The Court of Appeals of course makes capital of the fact that an earlier
certification from the U.S. Immigration office said that it had no record of
Webb entering the U.S. But that erroneous first certification was amply
explained by the U.S. Government and Court of Appeals Justice Tagle stated
it in his dissenting opinion, thus:
While it is true that an earlier Certification was issued by the U.S. INS on
August 16, 1995 finding no evidence of lawful admission of Webb, this was
already clarified and deemed erroneous by no less than the US INS Officials.
As explained by witness Leo Herrera-Lim, Consul and Second Secretary of
the Philippine Embassy in Washington D.C., said Certification did not pass
through proper diplomatic channels and was obtained in violation of the rules
on protocol and standard procedure governing such request.
The initial request was merely initiated by BID Commissioner Verceles who
directly communicated with the Philippine Consulate in San Francisco, USA,
bypassing the Secretary of Foreign Affairs which is the proper protocol
procedure. Mr. Steven Bucher, the acting Chief of the Records Services
Board of US-INS Washington D.C. in his letter addressed to Philip
20

Antweiler, Philippine Desk Officer, State Department, declared the earlier

Certification as incorrect and erroneous as it was not exhaustive and did not
reflect all available information. Also, Richard L. Huff, Co-Director of the
Office of Information and privacy, US Department of Justice, in response to
the appeal raised by Consul General Teresita V. Marzan, explained that the
INS normally does not maintain records on individuals who are entering the
country as visitors rather than as immigrants: and that a notation concerning
the entry of a visitor may be made at the Nonimmigrant Information system.
Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the
initial search could not have produced the desired result inasmuch as the data
base that was looked into contained entries of the names of IMMIGRANTS
and not that of NON-IMMIGRANT visitors of the U.S..[62]
The trial court and the Court of Appeals expressed marked cynicism over the
accuracy of travel documents like the passport as well as the domestic and
foreign records of departures and arrivals from airports. They claim that it
would not have been impossible for Webb to secretly return to the
Philippines after he supposedly left it on March 9, 1991, commit the crime,
go back to the U.S., and openly return to the Philippines again on October 26,
1992. Travel between the U.S. and the Philippines, said the lower courts took
only about twelve to fourteen hours.
If the Court were to subscribe to this extremely skeptical view, it might as
well tear the rules of evidence out of the law books and regard suspicions,
surmises, or speculations as reasons for impeaching evidence. It is not that
official records, which carry the presumption of truth of what they state, are
immune to attack. They are not. That presumption can be overcome by
evidence. Here, however, the prosecution did not bother to present evidence
to impeach the entries in Webbs passport and the certifications of the
Philippine and U.S. immigration services regarding his travel to the U.S. and
back. The prosecutions rebuttal evidence is the fear of the unknown that it
planted in the lower courts minds.

CONCLUSION
In our criminal justice system, what is important is, not whether the court
entertains doubts about the innocence of the accused since an open mind is
willing to explore all possibilities, but whether it entertains a reasonable,
lingering doubt as to his guilt. For, it would be a serious mistake to send an
innocent man to jail where such kind of doubt hangs on to ones inner being,
like a piece of meat lodged immovable between teeth.
Will the Court send the accused to spend the rest of their lives in prison on
the testimony of an NBI asset who proposed to her handlers that she take the
role of the witness to the Vizconde massacre that she could not produce?
WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated
December 15, 2005 and Resolution dated January 26, 2007 of the Court of
Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants
Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio
Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes
of which they were charged for failure of the prosecution to prove their guilt
beyond reasonable doubt. They are ordered immediately RELEASED from
detention unless they are confined for another lawful cause.
Let a copy of this Decision be furnished the Director, Bureau of Corrections,
Muntinlupa City for immediate implementation. The Director of the Bureau
of Corrections is DIRECTED to report the action he has taken to this Court
within five days from receipt of this Decision.
SO ORDERED.

7. Effect of Webbs alibi to others

Webbs documented alibi altogether impeaches Alfaro's testimony, not only
with respect to him, but also with respect to Lejano, Estrada, Fernandez,
Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition
that Webb was in the U.S. when the crime took place, Alfaros testimony will
not hold together. Webbs participation is the anchor of Alfaros story. Without
it, the evidence against the others must necessarily fall.
21

G.R. No. L-54904 January 29, 1988

HEIRS OF TITO RILLORTA, petitioner,
vs.
HON. ROMEO N. FIRME, Presiding Judge, Court of First Instance of
La Union, Branch IV, Bauang, La Union; and ANDREW
COSTALES, respondents.
CRUZ, J.:
May the civil award in a criminal case be appealed by the heirs of the
offended party? Of course. May the criminal aspect of the decision be
modified as a basis for the increase in the civil award? Certainly not. Is the
case at bar covered by the rule on double jeopardy or by the exception? We
shall come to that.
Accused of killing Tito Rillorta, Andrew Costales, was held guilty only of
less serious physical injuries and sentenced to twenty days of arresto
menor and to indemnify the heirs of the deceased in the sum of P500.00. The
trial court said the defendant could not be held liable for homicide because
the wound inflicted on the victim was only superficial. The certified cause of
death was pneumonia, and this was obviously induced by the exploratory
surgery which was needlessly performed upon him. In short, the victim had
succumbed not to the skin-deep wound that did not affect any vital organ but
as a result of the attending physician's gross incompetence. 1
The heirs of the deceased, herein petitioners, did not agree. Through their
counsel acting "under the direct control and supervision of the provincial
fiscal," they filed a motion for reconsideration of the decision notified to
them on January 23, 1980. 2 This motion was sent by registered mail on
February 2, 1980. 3 Heard on February 26, it was denied on February 28,
1980, in an order that was communicated to the private prosecutor on March
18, 1980. 4 On March 20, 1980, a notice of appeal was filed with the trial
court under the signatures of the prosecuting fiscal and the private
prosecutor.5 After considering the opposition to the notice and the reply
thereto, the respondent judge dismissed the appeal on April 14, 1980, for
tardiness. 6 Both the fiscal and the private prosecutor filed separate motions
for reconsideration, but these were denied on May 12, 1980. 7 The dismissal
of the appeal is now the subject of this petition for certiorari under Rule 65
of the Rules of Court.

It is clear that the notice of appeal was filed within the 15-day reglementary
period. The motion for reconsideration of the decision rendered in open court
on January 23, 1980, was filed on February 2, 1980, date of its posting by
registered mail. Only ten days had elapsed from the earlier date. The running
of the period was suspended while the motion was under study and until a
copy of the order denying the same was furnished the private prosecutor on
March 18, 1980. When two days later, on March 20, the fiscal and the private
prosecutor jointly filed a notice of appeal, only 12 days of the period of
appeal had been consumed. The appeal was thus perfected on time,
conformably to Rule 122, Section 6, of the Rules of Court, reading as
follows:
SEC. 6. When appeal to be taken. - An appeal must be taken within fifteen
(15) days from promulgation or notice of the judgment or order appealed
from. This period for perfecting an appeal shall be interrupted from the time a
motion for new trial is filed until notice of the order overruling the motion
shall have been served upon the defendant or his attorney.
The trial court thus lost jurisdiction over the appealed case on March 20,
1980, and was obligated to elevate the records thereof to the appellate court.
Having become functus officio, it could no longer issue the challenged orders
of April 14, 1980, and May 12, 1980, dismissing the appeal.
The question of whether or not the civil award in a criminal case may be
appealed is not new and has been resolved earlier by this Court. It is settled
that this can be done by the private prosecutor on behalf of the offended party
or his successors. The adequacy of the award may be challenged on the
ground that it is not commensurate with the gravity of the injuries sustained
as a result of the offense committed by the accused, Thus, we have held that

... The offended party, be he the owner of the stolen or misappropriated

property, or the owner of the pawnshop, may appeal from the judgment of the
trial court with reference to the payment of the indemnity resulting from the
commission of the offense. The pawnbrokers in this case are deemed to have
been prejudiced by the commission of the crime, because by reason of the
fact that the jewels pledged to them had been stolen they will now be
deprived of their possession without first having a declaration of indemnity
for the amount of the pledges. 8

In this instance, this court, in its resolution dated November 28, 1933,
declared the appeal of the accused abandoned. Therefore, the only question
left to be decided is the appeal of the private prosecution with regard to the
civil liability of the accused.
The trial courts resolution that, because the cause had been appealed by the
accused, it had lost its jurisdiction to pass upon the motion for
reconsideration filed by the private prosecution rune days after the date of the
judgment, is unfounded.
The right of the injured persons in an offense to take part in its prosecution
and to appeal for purpose of the civil liability of the accused (section 107,
General Orders, No. 58), necessarily implies that such right is protected in the
same manner as the right of the accused to his defense. If the accused has the
right within fifteen days to appeal from the judgment of conviction, the
offended party should have the right within the same period to appeal from so
much of the judgment as is prejudicial to him, and his appeal should not be
made dependent on that of the accused. 9
However, the civil indemnity may be increased only if it will not require an
aggravation of the decision in the criminal case on which it is based. In other
words, the accused may not, on appeal by the adverse party, be convicted of a
more serious offense or sentenced to a higher penalty to justify the increase in
the civil indemnity. This rule is applicable in the present case.
The petitioners are urging that the civil award in the sum of only P500.00 be
increased because the accused should not have been found guilty of only less
serious physical injuries but of homicide. They are not confining themselves
to the civil aspect of the challenged decision. In their own words, their appeal
involves "both the criminal aspect and the civil liabilities in the criminal
cases." 10 This is not permitted under the rule on double jeopardy. 11
Section 2 of Rule 122 of the Rules of Court provides that "the People of the
Philippines cannot appeal if the defendant would be placed thereby in double
jeopardy." This provision is based on the old case of Kepner v. United
States, 12 where the U.S. Supreme Court, reviewing a decision of the
Philippine Supreme Court in 1904, declared by a 5-4 vote that appeal of the
prosecution from a judgment of acquittal (or for the purpose of increasing the
penalty imposed upon the convict) would place him in double jeopardy. It has
been consistently applied since then in this jurisdiction.

xxx xxx xxx

22

It need only be stressed that if the government itself cannot appeal, much less
then can the offended party or his heirs, who are mainly concerned only with
the civil indemnity.
The prohibition operates as a "bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information." 13 There is no
question that the crime of less serious physical injuries, of which the accused
in this case was convicted, is necessarily included in the offense of homicide.
But the petitioners argue that double jeopardy will not attach because the
judgment convicting the accused of less serious physical injuries is tainted
with grave abuse of discretion and therefore null and void. This argument is
flawed because whatever error may have been committed by the lower court
was merely an error of judgment and not of jurisdiction. It did not affect the
intrinsic validity of the decision. This is the kind of error that can no longer
be rectified on appeal by the prosecution no matter how obvious the error
may be.
In People v. City Court of Silay, 14 the trial court granted the defendant's
motion to dimiss a charge for falsification after the prosecution had rested,
holding that the guilt of the accused had not been proved beyond reasonable
doubt. The Court disagreed. Nevertheless, it held through Justice MunozPalma that "however erroneous the order of the respondent court is, and
although a miscarriage of justice resulted from said order, such error cannot
now be lighted because of the timely plea of double jeopardy."
We have made similar rulings in several other cases, among them People v.
Hernando, 108 SCRA 121, People v. Francisco, 128 SCRA 110, and People
v. Villarin, 11 SCRA 550.
The cases cited by the petitioners are not in point because they all involve not
errors of judgment but denial of due process resulting in loss or lack of
jurisdiction. 15 The prosecution in each of these cases was allowed to appeal
because it had not been given its day in court. In the present case, a full trial
was held and both the prosecution and the defense were accorded the right to
be heard before the judgment was reached. There is no doubt at all that the
trial court had the requisite jurisdiction to pronounce the challenged sentence.
Even assuming it was incorrect, it was certainly not invalid.

It follows that the appeal should be limited to the civil award corresponding
only to the offense found against the accused, to wit, less serious physical
injuries. The award cannot be related to the victim's death, of which the
defendant has been absolved by the trial court. The problem then is whether
or not the sum of P500.00 was sufficient indemnification for the wound
which, the trial court has held, was not the proximate cause of the victim's
death.
The determination of this question should normally be made by the appellate
court after examining the factual issues as originally resolved by the trial
court. This would require elevation of the records of the case to the Court of
Appeals in accordance with the usual procedure and an exchange again of
pleadings and arguments between the parties that will further prolong this
case. But we do not believe that such delay is necessary. We can decide the
appeal ourselves to expedite decision of this case. We have carefully studied
the pros and cons of this problem and can rule on it directly on the basis of
the record before us and in the interest of speedy justice.
Accordingly, we hold that the sum awarded by the trial court to the
petitioners, for the less serious physical injuries inflicted upon the victim
and not for his death is sufficient recompense. Therefore, the increase
sought is denied.
While the Court sympathizes with the petitioners for their tragic loss, it is
unable to accord them a more satisfactory material settlement because it is
limited by the findings of the trial court and inhibitions of double jeopardy. If
an error has been committed somewhere and on this it is not necessary for
us to rule that error will nonetheless not relax the application of the
salutary rule on double jeopardy. It must be, as it is here, upheld.
WHEREFORE, the orders of the respondent court dated April 14, 1980, and
May 20, 1980, are SET ASIDE. However, the appeal sought shall no longer
be necessary because the questioned civil award in the amount of P500.00 is
hereby directly AFFIRMED. No costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Paras and Gancayco, JJ., concur

23

FIRST DIVISION
[G.R. No. L-75983. April 15, 1988.]
MANUEL R. CRUZ; PAULINO M. ARCEO; ELPIDIO G. CACHO;
ROGELIO P. GARCIA; MANUEL M. DELA CRUZ; WILLIAM H.
LORENZANA; PABLO P. GARCIA; RODRIGO A. HALASAN;
ADRIANO B. CASTILLO; LEONARDO L. PAQUINTO; NESTOR T.
LIWANAG; ALEXANDER P. ROXAS; PABLO M. MERCADO;
EDUARDO P. GARCIA; GERARDO M. LUCAS; LEONIDES G.
MAABO; BRAULIO DEPUSOY; ALFREDO M. TILA; JEOFREY T.
METEORO; BENIGNO G. BANTOLINO; ANTONIO P. DATUL;
RENATO V. VENGCO; EDGARDO TERRENAL; EDUARDO D.
DELFIN; CORNELIO C. TACDERAN; AMANCIO D. LORIESTO;
JOSE A. SELOTERIO; APOLONIO E. ONIA; DOMINGO MARCO;
ARTURO VILLASANTA; ANTONIO OCCASIONES; TEODORO C.
CARANDANG; ROGELIO A. GARCIA; ROMEO A. BASENSE;
HARRY B. BENLIRO; ROLANDO B. BENLIRO; JAMES A.
UMADHAY; VICENTE A. GENER; ERNESTO A. CARPIO;
MANUEL S. SALARDA; GETULIO B. BRAGA, JR.; ARCADIO D.
CELENDRO; VIRGILIO P. GOMEZ; SERGIO R. PREYE;
CIRIACOM. DELA GUARDIA; RODITO B. SORIASO; ANTONIO D.
PUMAR; FEDERICO B. VECINAL; CESARIO D. VECINAL;
LORETO D. VECINAL; ROGELIO D. VECINAL; MARCELO B. DE
MESA; JULIAN DE MESA; GAVINO B. DE MESA; REMIGIO B. DE
MESA; DANILO B. DE MESA; ROLANDO P. TOLENTINO;
ANASTACIO P. DEL ROSARIO; REYNALDO C. REYES; BENITO B.
PAGANIBAN; ROMUALDO M. MONTENEGRO; ROMULO C.
OCAMPO; DEMOCRITO M. SILVESTRE; SALLY B. DIMAISIP;
FILIPINO B. DE LEON; NARCISO G. VIGO; TOMAS C. AMORTE;
CATALINO S. CRUZ; EDUARDO F. JAVIER; ROGELIO L.
CARICUNGAN; ERNESTO R. BARADI; RENE P. CORTEZ;
EDUARDO D. RAMIREZ; DONATO G. CABONITALIA; CAMILO
PATAO; JOSE TORRES; ISABELO NARNE; ERIC F. PICHAY;
DELFIN PIANO; FRANCISCO PIANO; RUDY G. ROMERO; MARIO
G. MERCADO; JUANITO PIANO; REYNOSO J. LAGMAY; PABLO
S. CALLEJO; FLORANTE SAGUN; RUSSEL A. PAULINO; LAUREL
LAMACA; RUFINO GAMBOA; TIRSO F. BALA, JR.; ANTONIO
CRUZ; BENITO PUGAL; CASIMIRO PATAO; ROGELIO PATAO;
EULOGIO PUGAL; CARLITO PUGAL; ANDRES PATAO; VICENTE
ARCANO; MARIANO YTURIAGA; RODOLFO MANUEL;
EDUARDO ABIHAY; MANUEL CARREON; CAMILO PIANO;
LUCIO ARIMADO; PABLO ACIERTO; EDUARDO PASCUAL;

FERMIN PUGAL; FLOR PIANO; RUDY PIANO; JUANITO BAFUL;

GODOFREDO RAQUEO; CALIXTO SOMERA; HILARION
PATAO; DELFIN B. GUTIERREZ; TEODULO BUGARIN; JAIME A.
SABADO, JR.; ALMARIO VILLANUEVA; APOLONIO SOMUDIO;
OSCAR LITADA; ROLANDO L. TOLENTINO; HERMINIO
BATONG-BAKAL; ROGELIO TURION; NELSON REMO; FERMIN
CORREA; DOMINGO SALAZAR; FELIPE PAREDES; DOMINGO
RECINTO; SILVANO BEATO; TOMAS GARCIA; RODOLFO
ABIHAY; MELCHOR CA-AMIK; NELITO C. LONTOC; EDERLINO
LACSINA; DOMINGO R. REYES; RODOLFO D. MANANSALA;
ROSALINO R. DELOS SANTOS; RONIE A. CELIZ; VIRGILIO M.
MALGAPO; DIONISIO C. CABRERA; ROGELIO V. PORTILLO;
JOSE D. PAMINTUAN; ROBERTO P. GALVEZ; LINO B. DAPADAP;
FERNANDO R. ROMERO; LINO M. VILLARIN; EMILIANO P.
SICANGCO; PAULINO V. ZAMORA; LEONARDO C. REYES;
GUMAL A. SAMO; IMPERIAL D. USMAN; GERUNDIO A. BOYLES;
ELPIDIO L. URBANO; ROMEO S. CANTADA; SOFRONIO B.
GALO; EUGENE D. BALANSAG; CIRILO P. MARIANO; ROMEO C.
CARIO; EDGARDO L. GOMEZ; EUGENIO CABAERO;
AQUILINO LEYRAN; ANTONIO A. HERMIDA; ALVARO P.
CABASAG; PRIMITIVO SULAYAD; TEODORO B. PATANO;
DOMINGO R. RODRIGUEZ; ROGER N. MAGALLANES;
SALVADOR O. CALDERON; LEOPOLDO B. ARCADIO; APLON M.
LINOGAMAN; JOSE E. ABRIA; JESUS N. ABRIA; ANDRES P.
PARADO; LARRY A. ARPON; JESSIE CABAGUNAY; MANUEL A.
BARQUILLIA; DANIEL S. CINCO; TIMOTEO C. LLAMERA; JR.;
ERNESTO D. DUMPA; ORLANDO G. ACSALAN; BONIFACIO
VALLETE; AGUSTIN VALLETE; SAMSON ARANETA; ERNESTO
DOCTOLERO; AVELINO HABULAN; ROLANDO TUDIN;
CONRADO M. GLORIA; DANIEL G. CAMPOS; JAIME F. CO;
VIRGILIO ALEJANDRO; SULPECIO L. REJUSO, JR.; MARCELO S.
GUESE; VICENTE PATAO; ROMEO IBAYAN; DANILO
MAGALLANES; RICARDO C. JARATA; ERNESTO H. ABOLOC;
DIOSDADO RODRIGUEZ; ALFREDO P. PEREZ; FEDERICO
VILICINA; ROSENDO I. RAMOS; JOSE C. SIOCHI; FEDERICO
MARCELINO; BENJAMIN V. TAN; DANILO CRUZ; CONSTANTE
CABANILLA; LEOPOLDO V. JOSE; PACIFICO BATACAN;
VICENTE SY; JOSE TORDESILLAS; ANTONIO DEPUSOY;
ARMANDO I. ULPINDO; EDILBERTO LIBERATO; JIMMY C.
REALIS; SULPICIO C. REJUSO; GEDALTIE MARIN; RENATO
BALLESTEROS; and DEMOCRITO LORAA;, Petitioners, v.
MINISTER JUAN PONCE ENRILE, GENERAL FIDEL RAMOS,
GENERAL (RET.) EMILIO N. CEA, MINISTER NEPTALI

GONZALES AND BRIG. GENERAL SAMUEL

SORIANO, Respondents.
[G.R. No. L-79077 April 15, 1988.]
IN THE MATTER OF THE PETITION FOR WRIT OF HABEAS
CORPUS OF IMPERIAL D. USMAN AND SAMU GUMAL, ACSARA
GUMAL, Petitioner, v. THE SECRETARY OF NATIONAL DEFENSE,
THE PRESIDENT OF MILITARY COMMISSION NO. 30, THE
DIRECTOR OF PRISONS AND THE EXECUTIVE
SECRETARY, Respondents.
[G.R. Nos. L-79599-79600. April 15, 1988.]
CONRADO M. GLORIA AND DANILO V.
MAGALLANES, Petitioners, v. THE CHIEF OF STAFF (AFP), THE
JUDGE ADVOCATE GENERAL (AFP), THE SECRETARY OF
JUSTICE, THE DIRECTOR OF PRISONS, Respondents.
[G.R. No. L-79862. April 15, 1988.]
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS
IN BEHALF OF MANUEL DE LA CRUZ, Petitioner, v. BRIG. GEN.
MELITON GOYENA (RET.), IN HIS CAPACITY AS DIRECTOR OF
THE BUREAU OF PRISONS, Respondents.
[G.R. No. L-80565. April 15, 1988.]
LEOPOLDO V. JOSE, Petitioner, v. DIRECTOR OF PRISONS,
SECRETARY RAFAEL ILETO, GENERAL FIDEL RAMOS,
SECRETARY SEDFREY ORDOEZ, AND BRIG. GEN. SAMUEL
SORIANO,Respondents.
Leopoldo P. Dela Rosa for petitioners in L-75983.
Anselmo M. Mabuti for petitioners D. Cruz and F. Marcelino.
Lininding P. Pangandaman for petitioners in 79077.
Segundo M. Gloria, Jr. for petitioners in L-79599-79600.
Jack L. Soriano for petitioner in L-79862.
24

SYLLABUS

1. ID.; ID.; ID.; APPLICABILITY OF DOCTRINE IN OLAGUER

DECISION (150 SCRA 144). The Olaquer decision impels on the other
hand the application thereof to all civilians, without distinction, who were
haled before military tribunals. To be sure, due consideration was given to
the submittal that the doctrine is, or should be declared as, limited in
applicability to "political offenders," and not "ordinary crimes" such as those
of which the civilian petitioners were convicted. But distinction should not be
set where none were clearly intended. The issue in Olaquer, as here, is the
jurisdiction of courts martial over the persons of civilians, and not merely
over the crimes imputed to them, regardless of which they are entitled to trial
by judicial, not executive or military process.
2. ID.; ID.; ID.; DOCTRINE IN OLAQUER DECISION (150 SCRA 144)
APPLICABLE TO PENDING CASES. The proposal to merely give
"prospective effect" to Olaquer. No distinction should be made, as the public
respondents propose, between cases still being tried and those finally decided
or already under review. All cases must be treated alike, regardless of the
stage they happen to be in, and since according to Olaquer, all proceedings
before courts martial m cases involving civilians are null and void, the court
deems it proper to adhere to that unequivocal pronouncement, perceiving no
cogent reason to deviate from the doctrine.
3. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; DOUBLE
JEOPARDY; WILL NOT ATTACH IN THE ABSENCE OF VALID
PREVIOUS PROCEEDINGS. No breach of the constitutional prohibition
against twice putting an accused in jeopardy of punishment for the same
offense would result from the retrial of the petitioners cases, for the simple
reason that the absence of jurisdiction of the courts martial to try and convict
the petitioners prevented the first jeopardy from attaching. Valid previous
proceedings are required in order that the defense of double jeopardy can be
raised by the accused in the second prosecution.
4. CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY;
PRESCRIPTION; FILING OF INFORMATION SUSPENDS THE
RUNNING OF PERIOD. The filing of the first charges should be
considered as having interrupted the prescriptive period notwithstanding the
lack of jurisdiction of the military tribunal in which they were filed, applying,
by analogy, the ruling inPeople v. Olarte.

DECISION
NARVASA, J.:
Habeas corpus proceedings were commenced in this Court on October 1,
1986 1 to test the legality of the continued detention of some 217 so-called
"political detainees" 2 arrested in the nine-year span of official martial rule
and committed to the New Bilibid Prisons in Muntinlupa. All had been made
to stand trial for common crimes 3 before various courts martial; 4 if any of
these offenses had any political color, this had neither been pleaded nor
proved.
Of the 217 prisoners, 157 are civilians, and only 26 confirmed as military
personnel. 5 One hundred and fifteen (115) accused had been condemned to
die. Forty-six (46) were sentenced to life imprisonment. To nine (9) others
were meted prison terms of from twenty to thirty years; to forty-one (41),
prison terms of ten to twenty years; and to three (3), less than ten years.
The present status of their cases are disparate, as might be expected. As of the
date of filing of the petitions in this Court, the sentences of sixty-eight (68)
had become final upon their approval by the Office of the President, 6
seventy-five (75) cases were pending review in either that Office or before
the Board of Military Review, while the appeal or review of the remaining
seventy-three (73) cases either had been expressly suspended pending the
outcome of these petitions, or are simply not dealt with in the records.
Presidential amnesty was granted to petitioner Virgilio Alejandrino, 7 yet to
this date he remains a prisoner at the Penitentiary, as do Domingo Reyes,
Antonio Pumar, Teodoro Patano, Andres Parado and Daniel Campus,
although they were acquitted of the charges against them, 8 and Reynaldo C.
Reyes and Rosalino de los Santos, who appear to have fully served the
sentences imposed on them by the military commissions which convicted
them. 9
The petitioners urge the Court to declare unconstitutional the establishment
of all military tribunals as well as General Order No. 8 ordaining their
creation, and the nullity of all the proceedings had against them before these
bodies as a result of which they had been illegally deprived of their liberty.
Their plea is for the grant of a rental of their respective cases in the civil
courts, where their right to due process may be accorded respect. 10 The writ
of habeas corpus issued on July 31, 1937, two weeks after an amended
petition 11 was filed with leave of court, reiterating the arguments originally
pleaded, and setting forth the additional claim that the pronouncement of this

Court of the lack of jurisdiction of military tribunals to try cases of civilians

even during martial rule, as declared in Olaquer, Et. Al. v. Military
Commission No. 34, Et Al., 12 entitled the petitioners to be unconditionally
freed from detention.chanrobles virtual lawlibrary
The Solicitor Generals return of the writ in behalf of the public respondents
stated that the latter "offer no objection or opposition to the release from
detention of petitioners-civilians . . . (which) may be immediately effected,
unless there are other legal causes that may warrant their detention . . .
(while) the other petitioners who are military personnel . . . should not be
released." 13 This return was shortly amended however 14 to urge that this
Court take a "second look" and undertake a "thorough re-examination of the
Olaquer decision," suggesting the inapplicability of the ruling to "cases
involving civilians charged with, and convicted of common crimes and . . .
cases where the detained accused have, in effect, fully served the sentence by
their continued detention for the duration of the penalty imposed." Also
suggested was the giving of "limited retroactive" effect to the decision,
considering the consequences "of voiding earlier convictions, . . . (such as)
the grant of immunity from prosecution as a result of prescription or of the
Statute of (L)imitations having run, witnesses having been scattered and no
longer available, . . . memories hav(ing) also been taxed beyond permissible
limits, . . . and (the annulment) of acquittal decisions, . . . to the great
prejudice of the rights of the accused." 15
In Olaquer, this Court in no uncertain terms affirmed that
". . . a military commission or tribunal cannot try and exercise jurisdiction,
even during the period of martial law, over civilians for offenses allegedly
committed by them as long as the civil courts are open and functioning, and
that any judgment rendered by such body relating to a civilian is null and
void for lack of jurisdiction on the part of the military tribunal concerned
(People v. Navarro, 63 SCRA 264, 274 [1975]. For the same reasons, Our
pronouncement in Aquino, Jr. v. Military Commission No. 2 (L-37364, 63
SCRA 546) and all decided cases affirming the same, in so far as they are
inconsistent with this pronouncement, should be deemed abandoned." 16
Such is the statement of the doctrine squarely applicable in these cases.
1. Clearly, no right to relief under Olaquer exists in favor of the 26 petitioners
who were admittedly in the military service. 17 Over them the courts martial
validly exercised jurisdiction. It need only be said that these tribunals were
created precisely to try and decide cases of military personnel, and the
validity of General Order No. 8 ordaining their creation, although repeatedly
25

challenged on constitutional grounds, has as many times been upheld by the

Court, either expressly or impliedly. 18 As to these petitioners, the writ is
thus unavailing.
2. Deference to the Olaquer decision impels on the other hand the application
thereof to all civilians, without distinction, who were haled before military
tribunals. To be sure, due consideration was given to the submittal that the
doctrine is, or should be declared as, limited in applicability to "political
offenders," and not "ordinary crimes" such as those of which the civilian
petitioners were convicted. 18 But distinction should not be set where none
were clearly intended. The issue in Olaquer, as here, is the jurisdiction of
courts martial over the persons of civilians, and not merely over the crimes
imputed to them, regardless of which they are entitled to trial by judicial, not
executive or military process. Conformably with this holding, the disposition
of these cases would necessarily have, as a premise, the invalidity of any and
all proceedings had before courts martial against the civilian petitioners.
There is all the more reason to strike down the proceedings leading to the
conviction of these non-political detainees who should have been brought
before the courts of justice in the first place, as their offenses are totally
unrelated to the insurgency avowedly sought to be controlled by martial rule.
Due regard for consistency likewise dictates rejection of the proposal to
merely give "prospective effect" to Olaquer. No distinction should be made,
as the public respondents propose, between cases still being tried and those
finally decided or already under review. All cases must be treated alike,
regardless of the stage they happen to be in, and since according to Olaquer,
all proceedings before courts martial m cases involving civilians are null and
void, the court deems it proper to adhere to that unequivocal pronouncement,
perceiving no cogent reason to deviate from the doctrine.
The fact cannot be ignored, however, that crimes appear to have been
committed, and there are accusations against herein petitioners for those
offenses. Olaquer cannot and does not operate to absolve the petitioners of
these charges, or establish that the same are baseless, so as to entitle them to
immediate release from detention. It is not to be forgotten that the victims in
offenses ascribed to the petitioners have as much interest as the State has to
prosecute the alleged authors of the misdeeds. Justice will be better served if
the detention of such of the petitioners as are not hereby ordered released or
excepted, is continued until their cases are transferred to the ordinary courts
having jurisdiction, and the necessary informations have been filed against
them therein, as has already been done in the case of petitioners Imperial D.
Usman and Samu Gumal. 19 The State should be given a reasonable period
of time to accomplish this transfer, at which time the petitioners may apply

for bail for their temporary release.chanrobles.com:cralaw:red

The Solicitor General not unreasonably anticipates questions to arise as to the
availability of certain defenses to the petitioners upon their prosecution
before the civil courts. It seems evident, however, that no breach of the
constitutional prohibition against twice putting an accused in jeopardy of
punishment for the same offense 20 would result from the retrial of the
petitioners cases, for the simple reason that the absence of jurisdiction of the
courts martial to try and convict the petitioners prevented the first jeopardy
from attaching. 21 Valid previous proceedings are required in order that the
defense of double jeopardy can be raised by the accused in the second
prosecution. 22
Neither does the defense of prescription appear to be available to the
petitioners who, except for a handful, were charged with offenses punishable
by death or reclusion perpetua, which prescribe in twenty years. 23 Even the
few not so charged cannot raise such defense since the filing of the first
indictments suspended the running of the prescriptive period, and the
prosecutions under the informations to be filed should be regarded as mere
continuations of the previous proceedings. 24 At the very least, the filing of
the first charges should be considered as having interrupted the prescriptive
period notwithstanding the lack of jurisdiction of the military tribunal in
which they were filed, applying, by analogy, the ruling in People v.
Olarte.25cralaw:red

I. Ramos, Pacifico Batacan, Edilberto Liberato, Jimmy C. Realis, Democrito

Loraa who are all military personnel.
As to the other petitioners, the Department of Justice is hereby DIRECTED
TO FILE the necessary informations against them in the courts having
jurisdiction over the offenses involved, within one hundred eighty (180) days
from notice of this decision, without prejudice to the reproduction of the
evidence submitted by the parties and admitted by the Military Commission.
If eventually convicted, the period of the petitioners detention shall be
credited in their favor.
The Courts wherein the necessary informations are filed are DIRECTED TO
CONDUCT with dispatch the necessary proceedings inclusive of those for
the grant of bail which may be initiated by the accused.
SO ORDERED.
Teehankee (C.J.), Yap, Fernan, Melencio-Herrera, Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.

In fine, the Court holds that the merits of the indictments against all these
civilians are solely for the civil courts to weigh and decide upon after due
proceedings. Otherwise stated, they are entitled to the retrial they have
explicitly requested of their respective cases in the civil courts.
WHEREFORE, the petition is hereby GRANTED insofar as petitioners
Virgilio Alejandrino, 26 Domingo Reyes, Antonio Pumar, Teodoro Patono,
Andres Parado, Daniel Campus, 27 Reynaldo C. Reyes and Rosalino de los
Santos 28 are concerned. The Director of the Bureau of Prisons is hereby
ordered to effect the immediate release of the above-mentioned petitioners,
unless there are other legal causes that may warrant their detention.
The petition is DISMISSED as to petitioners Elpidio Cacho, William
Lorenzana, Benigno Bantolino, Getulio B. Braga, Jr., Tomas C. Amarte,
Rogelio L. Caricungan, Ernesto Baradiel, Isabelo Narne, Eric F. Pichay,
Pablo Callejo, Russel A. Paulino, Laurel Lamaca, Tirso F. Bala, Calixto
Somera, Edulino Lacsina (Draftee), Ronnie A. Celiz, Elpidio Urbano,
Sofronio Galo, Aquilino Leyran, Leopoldo Arcadio, Rolando Tudin, Rosendo
26

G.R. No. 85481-82 October 18, 1990

WILLIAM TAN, JOAQUIN TAN LEH and VICENTE
TAN, petitioners,
vs.
HERNANI T. BARRIOS, in his capacity as State Prosecutor,
Department of Justice, THE CITY FISCAL OF CAGAYAN DE ORO
CITY, THE HONORABLE LEONARDO N. DEMECILLO, Presiding
Judge of the Regional Trial Court, Branch 24, Cagayan De Oro City,
and THE PEOPLE OF THE PHILIPPINES, respondents.
GRIO-AQUINO, J.:
On the basis of Proclamation No. 1081 dated September 21, 1972, then
President Ferdinand E. Marcos, thru General Order No. 8 dated September
27, 1972, authorized the AFP Chief of Staff to create military tribunals "to try
and decide cases of military personnel and such other cases as may be
referred to them."
In General Order No. 21 dated September 30, 1972, the military tribunals,
"exclusive of the civil courts," were vested with jurisdiction among others,
over violations of the law on firearms, and other crimes which were directly
related to the quelling of rebellion and the preservation of the safety and
security of the Republic.
In General Order No. 12-b dated November 7, 1972, "crimes against persons
. . . as defined and penalized in the Revised Penal Code" were added to the
jurisdiction of military tribunals/commissions.
Subsequently, General Order No. 49, dated October 11, 1974, redefined the
jurisdiction of the Military Tribunals. The enumeration of offenses
cognizable by such tribunals excluded crimes against persons as defined and
penalized in the Revised Penal Code. However, although civil courts should
have exclusive jurisdiction over such offenses not mentioned in Section 1 of
G.O. No. 49, Section 2 of the same general order provided that "the President
may, in the public interest, refer to a Military Tribunal a case falling under
the exclusive jurisdiction of the civil courts" and vice versa.
On April 17, 1975, the three petitioners, with twelve (12) others, were
arrested and charged in Criminal Case No. MC-1-67 entitled, "People of the
Philippines vs. Luis Tan alias Tata alias Go Bon Hoc, et al." before the
Military Commission No. 1, for the crimes of:
(1) murder through the use of an unlicensed or illegally possessed firearm,
penalized under Article 248 of the Revised Penal Code, in relation to Section
1, par. 6 of General Order No. 49, for the killing on August 25, 1973 of
Florentino Lim of tile wealthy Lim Ket Kai family of Cagayan de Oro City;
and

(2) unlawful possession, control, and custody of a pistol, caliber .45 SN1283521 with ammunition, in violation of General Orders Nos. 6 and 7 in
relation to Presidential Decree No. 9.
The accused were:
1. Luis Tan alias Tata alias Go Bon Hoc
2. Ang Tiat Chuan alias Chuana
3. Mariano Velez, Jr.
4. Antonio Occaciones
5. Leopoldo Nicolas
6. Enrique Labita
7. Oscar Yaun
8. Joaquin Tan Leh alias Go Bon Huat alias Taowie
9. Eusebio Tan alias Go Bon Ping
10. Vicente Tan alias Go Bon Beng alias Donge
11. Alfonso Tan alias Go Bon Tiak
12. Go E Kuan alias Kunga
13. William Tan alias Go Bon Ho
14. Marciano Benemerito alias Marcing alias Dodong
15. Manuel Beleta, and
16. John Doe (Annex A, Petition).
(Names italicized are the petitioners herein.)
Because the case was a "cause celebre" in Cagayan de Oro City, President
Marcos, pursuant to the recommendation of Defense Secretary Juan Ponce
Enrile, withdrew his earlier order (issued in response to the requests of the
defendants' lawyers) to transfer the case to the civil courts. Hence, the case
was retained in the military court (Annexes A to C of
Supplemental/Amended Petition, pp. 72-88, Rollo). All the accused were
detained without bail in the P.C. Stockade in Camp Crame.
Upon arraignment on May 6, 1975, all the accused pleaded "not guilty."
Manuel Beleta was discharged to be used as a state witness. He was released
from detention on May 5, 1975 (p. 4, Rollo).
Almost daily trials were held for more than thirteen (13) months. The
testimonies of 45 prosecution witnesses and 35 defense witnesses filled up
twenty-one (21) volumes of transcripts consisting of over 10,000 pages (p.
75, Rollo).
On June 10, 1976, a decision entitled "Findings and Sentence," was
promulgated by the Military Commission finding five (5) of the accused
namely:
1. Luis Tan
2. Ang Tiat Chuan
3. Mariano Velez, Jr.
4. Antonio Occaciones, and
5. Leopoldo Nicolas

guilty of MURDER. Each of them was sentenced to suffer an indeterminate

prison term of from seventeen (17) years, four (4) months, and twenty-one
(21) days, to twenty (20) years.
A sixth accused, Marciano Benemerito, was found guilty of both MURDER
and ILLEGAL POSSESSION OF FIREARM, and was sentenced to suffer
the penalty of death by electrocution (Annex B, Petition).
Eight (8) of the accused, namely:
1. Oscar Yaun
2. Enrique Labita
3. Eusebio Tan
4. Alfonso Tan
5. Go E Kuan
6. William Tan (petitioner herein)
7. Joaquin Tan Leh (petitioner herein) and
8. Vicente Tan (petitioner herein)
were acquitted of the charges, and released on June 11, 1976 (p. 8, Rollo).
On January 17, 1981, Proclamation No. 2045 ended martial rule and
abolished the military tribunals and commissions.
On May 22, 1987, this Court promulgated a decision in Olaguer vs. Military
Commission No. 34, et al. (150 SCRA 144), vacating the sentence rendered
on December 4, 1984 by Military Commission No. 34 against Olaguer, et al.
and declaring that military commissions and tribunals have no jurisdiction,
even during the period of martial law, over civilians charged with criminal
offenses properly cognizable by civil courts, as long as those courts are open
and functioning as they did during the period of martial law. This Court
declared unconstitutional the creation of the military commissions to try
civilians, and annulled all their proceedings as follows:
Due process of law demands that in all criminal prosecutions (where the
accused stands to lose either his life or his liberty), the accused shall be
entitled to, among others, a trial. The trial contemplated by the due process
clause of the Constitution, in relation to the Charter as a whole, is a trial by
judicial process, not by executive or military process, Military commissions
or tribunals, by whatever name they are called, are not courts within the
Philippine judicial system. ...
xxx xxx xxx
Moreover, military tribunals pertain to the Executive Department of the
Government and are simply instrumentalities of the executive power,
provided by the legislature for the President as Commander in-Chief to aid
him in properly commanding the army and navy and enforcing discipline
therein, and utilized under his orders or those of his authorized military
representatives. Following the principle of separation of powers underlying
the existing constitutional organization of the Government of the Philippines,
the power and the duty of interpreting the laws (as when an individual should
27

be considered to have violated the law) is primarily a function of the

judiciary. It is not, and it cannot be the function of the Executive Department,
through the military authorities. And as long as the civil courts in the land
remain open and are regularly functioning, as they do so today and as they
did during the period of martial law in the country, military tribunals cannot
try and exercise jurisdiction over civilians for offenses committed by them
and which are properly cognizable by the civil courts. To have it otherwise
would be a violation of the constitutional right to due process of the civilian
concerned. (Olaguer, et al. vs. Military Commission No. 34, 150 SCRA 144,
158-160.)
In October 1986, several months after the EDSA revolution, six (6) habeas
corpus petitions were filed in this Court by some 217 prisoners 1 in the
national penitentiary, who had been tried for common crimes and convicted
by the military commissions during the nine-year span of official martial rule
(G.R. Nos. 75983, 79077, 79599-79600, 79862 and 80565 consolidated and
entitled Manuel R. Cruz, et al. vs. Minister Juan Ponce Enrile, et al., 160
SCRA 700). The petitioners asked the Court to declare unconstitutional
General Order No. 8 creating the military tribunals, annul the proceedings
against them before these bodies, and grant them a retrial in the civil courts
where their right to due process may be accorded respect.
Conformably with the ruling in Olaguer, this Court in Cruz vs. Enrile (160
SCRA 700), nullified the proceedings leading to the conviction of nonpolitical detainees who should have been brought before the courts of justice
as their offenses were totally unrelated to the insurgency sought to be
controlled by martial rule.
The Court
(1) granted the petition for habeas corpus and ordered the release of those of
some who had fully served their sentences, or had been acquitted, or had been
granted amnesty;
(2) dismissed the petitions of those who were military personnel; and
(3) nullified the proceedings against those who were convicted and still
serving the sentences meted to them by the military courts, but, without
ordering their release, directed the Department of Justice to file the necessary
informations against them in the proper civil courts. The dispositive part of
the decision reads:
Wherefore the petition is hereby GRANTED insofar as petitioners Virgilio
Alejandrino, 2Domingo Reyes, Antonio Pumar, Teodoro Patono, Andres
Parado, Daniel Campus, 3 Reynaldo C. Reyes and Rosalino de los
Santos, 4 are concerned. The Director of the Bureau of Prisons is hereby
ordered to effect the immediate release of the abovementioned petitioners,
unless there are other legal causes that may warrant their detention.
The petition is DISMISSED as to petitioners Elpidio Cacho, William
Lorenzana, Benigno Bantolino, Getulio G. Braga, Jr., Tomas C. Amarte,

Rogelio L. Caricungan, Ernesto Baradiel, Isabelo Narne, Eric F. Pichay,

Pablo Callejo, Russel A. Paulino, Laurel Lamaca, Tirso F. Bala, Calixto
Somera, Edulino Lacsina (Draftee), Ronnie A. Celiz, Elpidio Urbano,
Sofronio Galo, Aquilino Leyran, Leopoldo Arcadio, Rolando Tudin Rosendo
I. Ramos Pacifico Batacan, Edilberto Liberato, Jimmy C. Realis. Democrito
Lorana who are all military personnel.
As to the other petitioners, the Department of Justice is hereby DIRECTED
TO FILE the necessary informations against them in the courts having
jurisdiction over the offenses involved, within one hundred eighty (180) days
from notice of this decision, without prejudice to the reproduction of the
evidence submitted by the parties and admitted by the Military Commission.
If eventually convicted, the period of the petitioners' detention shall be
credited in their favor.
The Courts wherein the necessary informations are filed are DIRECTED TO
CONDUCT with dispatch the necessary proceedings inclusive of those for
the grant of bail which may be initiated by the accused. (Cruz, et al. vs.
Enrile, et al., 160 SCRA 700, 711-712.)
On September 15, 1988, Secretary of Justice Sedfrey Ordoez issued
Department Order No. 226 designating State Prosecutor Hernani Barrios "to
collaborate with the City Fiscal of Cagayan de Oro City in the
investigation/reinvestigation of Criminal Case No. MC-1-67 and, if the
evidence warrants, to prosecute the case in the court of competent
jurisdiction" (Annex C, Petition). On November 15, 1988, State Prosecutor
Barrios was designated Acting City Fiscal of Cagayan de Oro City in hell of
the regular fiscal who inhibited himself (p. 66, Rollo).
Without conducting an investigation/reinvestigation, Fiscal Barrios filed on
December 9, 1988, in the Regional Trial Court of Cagayan de Oro City two
(2) informations for:
1. Illegal Possession of Firearm docketed as Crim. Case No. 88-824; and
2. Murder docketed as Crim. Case No. 88-825 against all the 15 original
defendants in Criminal Case No. MC-1-67 including those who had already
died 5 (Annexes D and E, Petition)
The State Prosecutor incorrectly certified in the informations that:
this case is filed in accordance with the Supreme Court Order in the case
of Cruz, et al. vs. Ponce Enrile in G.R. Nos. 75983, 79077, 79599, 79600,
79862 and 80565 as all accused are detained 6 except those that are already
dead. (p. 7, Rollo.)
He recommended bail of P50,000 for each of the accused in the two cases (p.
8, Rollo). Later, he increased the recommended bail to P140,000 for each
accused in the firearm case (Crim. Case No. 88-824). In the murder case
(Crim. Case No. 88-825), he recommended that the bail be increased to
P250,000 for each of the accused, except Luis Tan, Ang Tiat Chuan, and
Mariano Velez, Jr., for whom he recommended no bail. Still later, on October

28, 1988, he recommended no bail for all the accused (pp. 8-9, Rollo)
because of the presence of two aggravating circumstances; (1) prize or
reward; and (2) use of a motor vehicle (p. 65, Rollo).
Criminal Cases Nos. 88-824 and 88-825 of the RTC, Cagayan de Oro City,
were assigned by raffle to the sala of RTC Judge Leonardo N. Demecillo.
Before issuing warrants for the arrest of the accused, Judge Demecillo issued
an order on October 26, 1988, requiring State Prosecutor Barrios to submit
certified copies of "the supporting affidavits of the previous cases wherever
they are now," and of the Supreme Court order "which is the basis of filing
the above-entitled cases, within five (5) days from receipt" of his said order
(Annex F, Petition). The State Prosecutor has not complied with that order
for, as a matter of fact, there is no Supreme Court order to re-file the criminal
cases against the herein petitioners and their twelve (12) coaccused in Crim.
Case No. MC-1-67 of the now defunct Military Commission No. 1, because
none of them, except Antonio Occaciones, were parties in the Cruz vs.
Enrile habeas corpus cases (160 SCRA 700).
On November 7, 1988, William Tan, Joaquin Tan Leh and Vicente Tan filed
this petition for certiorari and prohibition praying that the informations in
Crim. Cases Nos. 88-824 and 88-825, and the order of respondent Judge
dated October 26, 1988 be annulled, and that the public respondents or any
other prosecution officer "be permanently enjoined from indicting,
prosecuting and trying them anew for the offenses charged therein because
they had already been acquitted of the same by Military Commission No. 1 in
Crim. Case No. MC-1-67" (p. 23, Rollo).
On November 23, 1988, the First Division of this Court dismissed the
petition for being premature as:
... the petitioners have not yet filed a motion to quash the allegedly invalid
informations in Criminal Cases Nos. 88-824 and 88825 (Annexes D and E)
whose annulment they seek from this Court (Sec. 3, Rule 117, 1985 Rules on
Criminal Procedure). The filing in the lower court of such motion is the plain,
speedy and adequate remedy of the petitioners. The existence of that remedy
(which they have not yet availed of) bars their recourse to the special civil
actions of certiorari and prohibition in this Court (Sec. 1, Rule 65, Rules of
Court (p. 41, Rollo.)
Upon the petitioners' filing a motion for reconsideration informing this Court
that the lower court had issued warrants for their arrest (p. 48, Rollo), we
issued a temporary restraining order on January 16, 1989 enjoining the
respondents from implementing the orders of arrest and ordering them to
comment on the petition (p. 50, Rollo).
The petitioners allege that State Prosecutor Barrios exceeded his jurisdiction
and gravely abused his discretion in reprosecuting them upon the supposed
authority of Cruz vs. Enrile for the following reasons:
28

1. The decision in Cruz vs. Enrile does not in fact direct the filing of
informations by the Secretary of Justice against THOSE who, like the
petitioners, WERE ACQUITTED after court martial proceedings during the
period of martial law.
2. The decision in Cruz vs. Enrile does not apply to the petitioners who were
not parties in that case, who were not heard, and over whom the court did not
acquire jurisdiction.
3. The reprosecution of the petitioners would violate their right to protection
against double jeopardy.
4. The State is estopped from reprosecuting the petitioners after they had
been acquitted by the military tribunal which the State itself had clothed with
jurisdiction to try and decide the criminal cases against them. The State may
not retroactively divest of jurisdiction the military tribunal that tried and
acquitted them (pp. 14-15, Petition).
5. The retroactive invalidation of the jurisdiction of the military court that
acquitted the petitioners would amount to anex post facto ruling (p. 81, Rollo,
Supplemental Petition).
6. The information against the petitioners in Crim. Case No. 88-825 is null
and void because it was filed without a prior preliminary investigation, nor a
finding of probable cause, nor the written approval of the Chief State
Prosecutor (Secs. 3 and 4, Rule 112, 1985 Rules on Criminal Procedure).
In his Comment dated February 1, 1985 (should be 1989), Fiscal Barrios
disclosed that the information in Criminal Case No. 88-824 for illegal
possession of firearm was "already withdrawn by the prosecution at a hearing
on January 27, 1988" (should be 1989?) (pp. 66-68, Rollo). The reason for
dropping the charge is not stated. It may be because Benemerito, the gunman
who was convicted of this felony and sentenced to death by the Military
Commission, is already dead-possibly executed. Hence, only the information
for murder (Crim. Case No. 88-825) against the petitioners and twelve (12)
others, including those already dead, is pending in the lower court (p. 37,
Rollo). He defended the reprosecution of the petitioners on the ground that it
will not constitute double jeopardy because the nullity of the jurisdiction of
the military tribunal that acquitted them prevented the first jeopardy from
attaching, thereby nullifying their acquittal. For the same reason, res
judicata is not applicable. Neither prescription, because "it had been
interrupted by the filing of the earlier charge sheets with the Military
Commission" (p. 67, Rollo).
The Solicitor General, in his separate comment, argued that the proceedings
involving civilians before a military commission were null and void because
we ruled in Olaguer that military tribunals are bereft of jurisdiction over
civilians, hence, their decisions, whether of conviction or acquittal, do not bar
re-prosecution for the same crime before a civil court (p. 102, Rollo).

The petition is meritorious. The public respondents gravely abused their

discretion and acted without or in excess of their jurisdiction in misconstruing
the third paragraph of the dispositive portion of this Court's decision in Cruz
vs. Enrile as their authority to refile in the civil court the criminal actions
against petitioners who had been tried and acquitted by Military Commission
No. 1 during the period of martial law. It is an unreasonable application
of Cruz vs. Enrile, for the decision therein will be searched in vain for such
authority to reprosecute every civilian who had ever faced a court martial,
much less those who had been acquitted by such bodies more than a decade
ago like the petitioners Tan, et al. herein.
The decision in Cruz vs. Enrile would be an instrument of oppression and
injustice unless given a limited application only to the parties/petitioners
therein who sought the annulment of the court martial proceedings against
themselves and prayed for a retrial in the civil courts of the criminal cases
against them. They alone are affected by the judgment in Cruz vs. Enrile, not
all and sundry who at one time or another had been tried and sentenced by a
court martial during the period of martial law.
Res inter alios judicatae nullum aliis praejudicium faciunt. "Matters
adjudged in a cause do not prejudice those who were not parties to it." (54
C.J. 719.) It is a cardinal rule of procedure that a court's judgment or order in
a case shall not adversely affect persons who were not parties to the self same
case (Icasiano vs. Tan, 84 Phil. 860). Hence, this court's pronouncement
in Cruz vs. Enrile nullifying the proceedings in military courts against the
civilian petitioners therein and ordering the refiling of informations against
them in the proper civil courts, may not affect the rights of persons who were
not parties in that case and who, not having submitted to the court's
jurisdiction, did not have their day in court (Busacay vs. Buenaventura, 94
Phil, 1033). Their reprosecution, based on the decision in Cruz vs. Enrile in
which they took no part and were not heard, would be violative of their right
to due process, the same right of the petitioners in Cruz vs. Enrile that this
Court endeavored to protect when it nullified the proceedings against them in
the military tribunals by applying the Olaguer doctrine that the trial of
civilians by military process was not due process. 7
There is, however, a perceptible lack of consistency in the application of the
Olaguer doctrine to Cruz vs. Enrilewhich needs to be rectified. For, although
the Court nullified the proceedings against the civilians-petitioners who were
still serving their sentences after conviction by the military courts and
commissions, and we directed the Secretary of Justice to file the necessary
informations against them in the proper civil courts, we did not nullify the
court martial proceedings against the other civilians petitioners who: (1) had
finished serving their sentences; (2) had been granted amnesty; or (3) had
been acquitted by the military courts. We did not order their reprosecution,
retrial, and resentencing by the proper civil courts. We set them free.

In effect, the Court applied one rule for those civilians who were convicted
by the military courts and were still serving their sentences, and another rule
for those who were acquitted, or pardoned, or had finished the service of their
sentences. The Court applied a rule of retroactive invalidity to the first group
(whom the Court ordered to be reprosecuted before the proper civil courts)
and another of prospective invalidity for the others (whom the Court ordered
to be released from custody).
In the interest of justice and consistency, we hold that Olaguer should, in
principle, be applied prospectively only to future cases and cases still
ongoing or not yet final when that decision was promulgated. Hence, there
should be no retroactive nullification of final judgments, whether of
conviction or acquittal, rendered by military courts against civilians before
the promulgation of the Olaguer decision. Such final sentences should not be
disturbed by the State. Only in particular cases where the convicted person or
the State shows that there was serious denial of the Constitutional rights of
the accused should the nullity of the sentence be declared and a retrial be
ordered based on the violation of the constitutional rights of the accused, and
not on the Olaguer doctrine. If a retrial, is no longer possible, the accused
should be released since the judgment against him is null on account of the
violation of his constitutional rights and denial of due process.
It may be recalled that Olaguer was rescued from a court martial which
sentenced him to death without receiving evidence in his defense. It would be
a cruel distortion of the Olaguer decision to use it as authority for
reprosecuting civilians regardless of whether, unlike Olaguer, they had been
accorded a fair trial and regardless of whether they have already been
acquitted and released, or have accepted the sentences imposed on them and
commenced serving the same. Not everybody who was convicted by a
military court, much less those who were acquitted and released, desires to
undergo the ordeal of a second trial for the same offense, albeit in a civil
court. Indeed, why should one who has accepted the justness of the verdict of
a military court, who is satisfied that he had a fair hearing, and who is willing
to serve his sentence in full, be dragged through the harrow of another
hearing in a civil court to risk being convicted a second time perchance to
serve a heavier penalty? Even if there is a chance of being acquitted the
second time around, it would be small comfort for the accused if he is held
without bail pending the completion of his second trial which may take as
long as, if not longer than, the sentence he has been serving or already served.
The trial of thousands of civilians for common crimes before military
tribunals and commissions during the ten-year period of martial rule (19711981) which were created under general orders issued by President Marcos in
the exercise of his legislative powers, is an operative fact that may not be
justly ignored. The belated declaration in 1987 of the unconstitutionality and
invalidity of those proceedings did not erase the reality of their consequences
29

which occurred long before our decision in Olaguer was promulgated and
which now prevent us from carrying Olaguer to the limit of its logic. Thus,
did this Court rule in Municipality of Malabang vs. Benito, 27 SCRA 533,
where the question arose as to whether the declaration of nullity of the
creation of a municipality by executive order wiped out all the acts of the
local government thus abolished:
In Norton vs. Shelby Count, Mr. Justice Field said: 'An unconstitutional act is
not a law; it confers no rights; it imposes no duties; it affords no protection; it
creates no office; it is, in legal contemplation, as inoperative as though it had
never been passed.' Accordingly, he held that bonds issued by a board of
commissioners created under an invalid statute were unenforceable.
Executive Order 386 'created no office.' This is not to say, however, that the
acts done by the municipality of Balabagan in the exercise of its corporate
powers are a nullity because the executive order is, in legal contemplation, as
inoperative as though it had never been passed.' For the existence of
Executive Order 386 is 'an operative fact which cannot justly be ignored.' As
Chief Justice Hughes explained in Chicot County Drainage District vs.
Baxter State Bank:
'The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence affording
no basis for the challenged decree. Norton vs. Shelby County, 118 U.S. 425,
442; Chicago, I. & L. Ry. Co. vs. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual existence of
a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects-with respect to
particular relations, individual and corporate, and particular conduct,
private and official. Questions of rights claimed to have become vested, of
status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and
of its previous application, demand examination. These questions are among
the most difficult of those which have engaged the attention of courts, state
and federal, and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity, cannot be justified.
There is then no basis for the respondents' apprehension that the invalidation
of the executive order creating Balabagan would have the effect of unsettling
many an act done in reliance upon the validity of the creation of that
municipality. (Municipality of Malabang vs. Benito, 27 SCRA 533)
The doctrine of "operative facts" applies to the proceedings against the
petitioners and their co-accused before Military Commission No. 1. The

principle of absolute invalidity of the jurisdiction of the military courts over

civilians should not be allowed to obliterate the "operative facts" that in the
particular case of the petitioners, the proceedings were fair, that there were no
serious violations of their constitutional right to due process, and that the
jurisdiction of the military commission that heard and decided the charges
against them during the period of martial law, had been affirmed by this
Court (Aquino vs. Military Commission No. 2, 63 SCRA 546) years before
the Olaguer case arose and came before us.
Because of these established operative facts, the refiling of the information
against the petitioners would place them in double jeopardy, in hard fact if
not in constitutional logic.
The doctrine of double jeopardy protects the accused from harassment by the
strong arm of the State:
The constitutional mandate is (thus) a rule of finality. A single prosecution
for any offense is all the law allows. It protects an accused from harassment,
enables him to treat what had transpired as a closed chapter in his life, either
to exult in his freedom or to be resigned to whatever penalty is imposed, and
is a bar to unnecessary litigation, in itself time-consuming and expenseproducing for the state as well. It has been referred to as 'res judicata in
prison grey.' The ordeal of a criminal prosecution is inflicted only once, not
whenever it pleases the state to do so. (Fernando, The Constitution of the
Philippines, 2nd Ed., pp. 722-723.)
Furthermore, depriving the petitioners of the protection of the judgment of
acquittal rendered by the military commission in their particular case by
retroactively divesting the military commission of the jurisdiction it had
exercised over them would amount to an ex post facto law or ruling, again, in
sharp reality if not in strict constitutional theory. An ex-post facto law or rule,
is one which
1. makes criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act;
2. aggravates a crime, or makes it greater than it was, when committed;
3. changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed;
4. alters the legal rules of evidence, and authorizes conviction upon less or
different testimony than the law required at the time of the commission of the
offense;
5. assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was lawful;
and,
6. deprives a person accused of a crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty. (In re: Kay Villegas Kami, Inc., 35
SCRA 428, 431)

Article IV, Section 22, of the 1987 Constitution prohibits the enactment of
an ex post facto law or bill of attainder.
We need not discuss the petitioners' final argument that the information
against them is invalid because there was no preliminary investigation, no
finding of probable cause by the investigating fiscal and no prior approval of
the information by the City Fiscal before it was filed.
WHEREFORE, the petition for certiorari and prohibition is granted.
Respondent State Prosecutor and the Presiding Judge of the Regional Trial
Court, Branch 24, at Cagayan de Oro City, are hereby ordered to discharge
the petitioners from the information in Criminal Case No. 88-825. The
temporary restraining order which we issued on January 16, 1989 is hereby
made permanent. No costs.
SO ORDERED.
Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.
Fernan, C.J., took no part.

30

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

- versus -

FRANCISCO JUAN LARRAAGA alias "PACO";

JOSMAN AZNAR; ROWEN ADLAWAN alias
"WESLEY"; ALBERTO CAO alias "ALLAN
PAHAK"; ARIEL BALANSAG, DAVIDSON
VALIENTE RUSIA alias "TISOY TAGALOG";
JAMES ANTHONY UY alias "WANGWANG"; and
JAMES ANDREW UY alias "MM",
Accused-Appellants.

G.R.
Nos. 138874-75

illegal detention and (b) simple kidnapping and serious illegal detention, the
dispositive portion of which reads:

Present:

WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu

City in Criminal Cases Nos. CBU-45303 and 45304 is AFFIRMED with the
followingMODIFICATIONS:

DAVIDE,
JR., C.J.
PUNO,
PANGANIBAN,
QUISUMBING,
YNARESSANTIAGO,
SANDOVALGUTIERREZ,
CARPIO,
AUSTRIAMARTINEZ,
CORONA,
CARPIO
MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
NAZARIO, and
GARCIA, JJ.
Promulgated:

July 21, 2005

x---------------------------------------------------------------------------------------------------------------------------------------------x
RESOLUTION
PER CURIAM:
At bar are four (4) motions for reconsideration separately filed by
appellants (1) Francisco Juan Larraaga, (2) Josman Aznar, (3) Rowen
Adlawan, Alberto Cao and Ariel Balansag, and (4) James Anthony Uy and
James Andrew Uy, assailing our Decision dated February 3, 2004 convicting
them of the crimes of (a) special complex crime of kidnapping and serious

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN

LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN
ADLAWAN alias WESLEY;ALBERTO CAO alias ALLAN
PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are
found guilty beyond reasonable doubt of the special complex crime of
kidnapping and serious illegal detention with homicide and rape and are
sentenced to suffer the penalty of DEATH by lethal injection;
(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN
LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN
ADLAWAN alias WESLEY;ALBERTO CAO alias ALLAN
PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are
found guilty beyond reasonable doubt of the crime of simple kidnapping and
serious illegal detention and are sentenced to suffer the penalty
of RECLUSION PERPETUA;

In accordance with Article 83 of The Revised Penal Code, as amended by

Section 25 of RA No. 7659, upon the finality of this Decision, let the records
of this case be forthwith forwarded to the Office of the President for the
possible exercise of Her Excellencys pardoning power.
SO ORDERED.
Appellants anchor their motions on the following grounds:
A.
I

LARRAAGA

THE COURT A QUO ERRED IN BARRING LARRAAGA AND THE

NATIONAL BUREAU OF INVESTIGATION (NBI) REGIONAL
DIRECTOR FLORENCIO VILLARIN FROM TESTIFYING;
II
THE POLICE PLANTED EVIDENCE ON APPELLANTS;
III
LARRAAGA SUFFICIENTLY PROVED HIS ALIBI;

(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY

UY, who was a minor at the time the crime was committed, is likewise found
guilty beyond reasonable doubt of the special complex crime of kidnapping
and serious illegal detention with homicide and rape and is hereby sentenced
to suffer the penalty ofRECLUSION PERPETUA; in Criminal Case No.
CBU-45304, he is declared guilty of simple kidnapping and serious illegal
detention and is sentenced to suffer the penalty of TWELVE (12) years
of prision mayor in its maximum period, as MINIMUM, to seventeen (17)
years of reclusion temporal in its medium period, asMAXIMUM;
(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy
and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil
indemnity, (b)P25,000.00 as temperate damages, (c) P150,000.00 as moral
damages, and (d) P100,000.00 as exemplary damages.
Three (3) Justices of the Court maintain their position that RA 7659 is
unconstitutional insofar as it prescribes the death penalty; nevertheless, they
submit to the ruling of the majority that the law is constitutional and the death
penalty can be lawfully imposed in the case at bar.

IV
THE TRIAL COURT PREVENTED THE INTRODUCTION OF KEY
DEFENSE EVIDENCE;
V
THE CORPSE FOUND IN THE RAVINE WAS NOT THAT OF
MARIJOY; AND
VI
PROSECUTION WITNESS RUSIA WAS A COACHED WITNESS.[1]
B.
I

AZNAR

31

THE HONORABLE COURT ERRED IN FINDING THAT THE TRIAL

COURT DID NOT VIOLATE THE RIGHTS OF THE ACCUSED TO DUE
PROCESS OF LAW.

THE GUILT OF THE ACCUSED-APPELLANTS FOR THE CRIME

CHARGED HAS NOT BEEN PROVEN BEYOND REASONABLE
DOUBT.[3]

II

D.

THE HONORABLE COURT ERRED IN (A) DISCHARGING DAVID

RUSSIA AS STATE WITNESS; AND (B) CONVICTING THE
APPELLANTS MAINLY ON THE BASIS OF THE TESTIMONY OF
RUSIA.

III
THE HONORABLE COURT ERRED IN REJECTING THE DEFENSE OF
APPELLANT AZNAR.
IV
THE HONORABLE COURT ERRED IN IMPOSING THE DEATH
PENALTY ON THE APPELLANTS.[2]
C.
I

ADLAWAN, BALANSAG, CAO

PROSECUTION WITNESS RUSIA IS NOT QUALIFIED TO BE A STATE

WITNESS UNDER PARAGRAPHS (D) AND (E), SECTION 17 OF THE
REVISED RULES OF CRIMINAL PROCEDURE.
II
RUSIAS TESTIMONY AND THAT OF THE OTHER PROSECUTION
WITNESSES WERE INCREDIBLE, INCONSISTENT, AND UNWORTHY
OF BELIEF.
III
BIAS AND PREJUDICE AGAINST THE DEFENSE WERE GLARINGLY
DISPLAYED BY THE COURT A QUO WHICH GREATLY AFFECTED
THE OUTCOME OF THE CASE.
IV

JAMES ANDREW AND JAMES ANTHONY UY

ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER

BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE
OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997;
II
THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN
TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER
CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS
EXHUMATION FOR DNA TESTING;[4]

In his supplemental motion for reconsideration dated March 25, 2004,

Larraaga submitted a separate study of Dr. Racquel Del Rosario-Fortun,
Forensic Pathologist, to show that the examination conducted by the
prosecution expert witnesses on the body found in Tan-awan, Carcar is
inadequate.
In a similar supplemental motion for reconsideration[5], Aznar submitted to
this Court the Affidavit dated February 27, 2004 of Atty. Florencio Villarin,
Regional Director of the National Bureau of Investigation, Central Visayas,
to show that: (1) the police investigation of this case was flawed; (2) he
(Aznar) was arrested in 1997 not because of his involvement in this case but
because he had in his possession a pack of shabu and firearms; and (3) David
Rusia is not a credible witness.
On July 15, 2004, the Solicitor General filed a consolidated
comment[6] praying that the four (4) motions for reconsideration be denied
with finality, there being no new argument raised. He responded to appellants
assignments of errors by exhaustively quoting portions of our challenged
Decision.
In his consolidated comment[7] to Aznars supplemental motion for
reconsideration, the Solicitor General enumerated the grounds why Atty.
Villarins Affidavit should not be given consideration. On February 15, 2005,

Aznar filed a reply alleging that the Solicitor General read out of context
certain portions of the Affidavit. He argued that the
Affidavit only exposes the flawed investigation of the Chiong case and that,
at the time of his arrest, there was no evidence against him. On March 4,
2005, the Solicitor General filed a rejoinder stating that Aznars reply actually
supports the undersigned counsels (Solicitor Generals) position that Atty.
Villarins Affidavit is utterly inadequate to prove his innocence or at least
even acquit them on reasonable doubt, thus, it would be useless to call for
new trial on the basis of such Affidavit. On March 29, 2005, Aznar filed a
sur-rejoinder insisting that the Affidavit should be given due consideration.
Except for the motion filed by appellants Uy brothers with respect to James
Andrews alleged minority, we find all the motions bereft of merit.
At the inception, let it be emphasized that the filing of a motion for
reconsideration does not impose on us the obligation to discuss and rule again
on the grounds relied upon by the movant which are mere reiteration of the
issues previously raised and thoroughly determined and evaluated in our
Decision being questioned. In Ortigas and Company Limited Partnership vs.
Velasco,[8] we ruled that, "this would be a useless formality of ritual
invariably involving merely a reiteration of the reasons already set forth in
the judgment or final order for rejecting the arguments advanced by the
movant."
The foregoing principle applies squarely to the motions filed by appellants
Larraaga, Aznar, Adlawan, Cao and Balansag, it being apparent that the
points raised therein are not neoteric matters demanding new judicial
determination. They are mere rehash of the arguments set forth in their
respective briefs which we already considered, weighed and resolved before
we rendered the Decision sought to be reconsidered.
However, in view of the severity of the penalties for the crimes charged, we
deem it necessary to stress once more our basis in convicting appellants.
The following is a prcis of the issues submitted by appellants in their
motions:
This Court erred

first, in according credence to Rusias testimony;

second, in rejecting appellants alibi;
32

third, in holding that the trial court did not violate their right to due process
when it excluded the testimony of other defense witnesses; and
fourth, in holding that the body found in Tan-awan, Carcar was not that of
Marijoy.
In deciding a criminal case, the policy of the courts is always to look at the
case in its entirety. The totality of the evidence presented by both the
prosecution and the defense are weighed, thus, averting general conclusions
from isolated pieces of evidence. This means that an appeal of a criminal
case opens its entire records for review.[9]
I

Appellants vigorously contend that we should not have sustained Rusias

testimony hook, line and sinker, owing to his tainted record and
reputation. However, it must be stressed that Rusias testimony was not
viewed in isolation. In giving credence to Rusias testimony, the trial court
took into consideration the physical evidence and the
corroborative testimonies of other witnesses. Thus, we find no reason why
we should not uphold the trial courts findings.
We reiterate our pronouncement in our Decision that what makes Rusias
testimony worthy of belief is its striking compatibility with the physical
evidence. Physical evidence is one of the highest degrees of proof. It speaks
more eloquently than all witnesses put together.[10] The presence of
Marijoys ravished body in a deep ravine at Tan-awan, Carcar with tape
on her mouth and handcuffs on her wrists certainly bolstered Rusias
testimony on what actually took place from Ayala Center to Tanawan. Indeed, the details he supplied to the trial court are of such nature and
quality that only a witness who actually saw the commission of the crimes
could furnish. Reinforcing his testimony is its corroboration by several other
witnesses who saw incidents of what he narrated. Rolando Dacillo and
Mario Minoza witnessed Jacquelines two failed attempts to escape from
appellants near Ayala Center. Benjamin Molina and Miguel
Vergararecognized Rowen as the person who inquired from them where he
could find a vehicle for hire on the evening of July 16, 1997. Alfredo
Duarte saw Rowen when he bought barbeque and Tanduay at Nenes Store
while the white van, driven by Cao, was waiting on the side of the road and
he heard voices of quarreling male and female emanating from the van. And
lastly, Manuel Camingao and Rosendo Rio testified on the presence of
Larraaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997. All these

bits and pieces of story form part of Rusias narration. Now, with such strong
anchorage on the physical evidence and the testimonies of disinterested
witnesses, why should we not accord credence to Rusias testimony? Even
assuming that his testimony standing alone might indeed be unworthy of
belief in view of his character, it is not so when considered with the other
evidence presented by the prosecution.
II
Appellants likewise claimed that we should have not sustained the trial courts
rejection of their alibi. Settled is the rule that the defense of alibi is inherently
weak and crumbles in the light of positive declarations of truthful witnesses
who testified on affirmative matters.[11] Being evidence that is negative in
nature and self-serving, it cannot attain more credibility than the testimonies
of prosecution witnesses who testify on clear and positive evidence. [12] On
top of its inherent weakness, alibi becomes less plausible as a defense when it
is corroborated only by relatives or close friends of the accused. [13]
This case presents to us a balance scale whereby perched on one end is
appellants alibi supported by witnesses who were either their relatives,
friends or classmates, while on the other end is the positive identification of
the herein appellants by the prosecution witnesses who were not, in any way,
related to the victims. With the above jurisprudence as guide, we are certain
that the balance must tilt in favor of the latter.
Besides, a thorough examination of the evidence for the prosecution shows
that the appellants failed to meet the requirements of alibi, i.e., the
requirements of time and place.[14] They failed to establish by clear and
convincing evidence that it was physically impossible for them to be at the
Ayala Center, Cebu City when the Chiong sisters were abducted. What is
clear from the evidence is that Rowen, Josman, Ariel, Alberto, James
Anthony and James Andrew were all within the vicinity of Cebu City on July
16, 1997.
Not even Larraaga who claimed to be in Quezon City satisfied the required
proof of physical impossibility. During the hearing, it was shown that it takes
only one (1) hour to travel by plane from Manila to Cebu and that there are
four (4) airline companies plying the route. One of the defense witnesses
admitted that there are several flights from Manila to Cebu each morning,
afternoon and evening. Indeed, Larraagas presence in Cebu City on July
16, 1997 was proved to be not only a possibility but a reality. Four (4)
witnesses identified Larraaga as one of the two men talking to Marijoy and
Jacqueline on the night of July 16, 1997. Shiela Singson testified that on
July 16, 1997, at around 7:20 in the evening, she saw Larraaga approach

Marijoy and Jacqueline at the West Entry of Ayala Center. The incident
reminded her of Jacquelines prior story that he was Marijoys admirer. Shiela
confirmed that she knows Larraaga since she had seen him on five (5)
occasions. Analie Konahap also testified that on the same evening of July
16, 1997, at about 8:00 oclock, she saw Marijoy and Jacqueline talking to
two (2) men at the West Entry of Ayala Center. She recognized the two (2)
men as Larraaga and Josman, having seen them several times at Glicos, a
game zone, located across her office at the third level of Ayala
Center. Williard Redobles, the security guard then assigned at Ayala Center,
corroborated the foregoing testimonies of Shiela and Analie. In
addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he
saw Larraaga at Tan-awan at about 3:30 in the morning of July 17, 1997. The
latter was leaning against the hood of a white van.[15] And over and above all,
Rusia categorically identified Larraaga as one of the participes criminis.
Taking the individual testimonies of the above witnesses in relation with that
of Rusia, we are convinced that Larraaga was indeed in Cebu City at the time
of the commission of the crimes and was one of the principal perpetrators
thereof.
At this juncture, it bears mentioning that this case is not the first time
that Larraaga was charged with or complained of pruriently assaulting young
female students in Cebu.Months before the abduction of Marijoy and Jackie,
the parents of a certain Rochelle Virtucio, complained about Larraagas
attempt to snatch their young daughter and drag her in a black, stylish Honda
Civic. It happened just near the gate of Rochelles school, thus, showing his
impudence. We quote a portion of the transcript of stenographic notes dated
September 23, 1998, thus:
ATTY. HERMOSISIMA:
Your Honor please, this is a . Inspector Era handed to this
representation a copy of a Letter dated September 25, 1996, addressed to
the Student Affairs Office, University of San Carlos,P. del Rosario Street,
Cebu City, and this is signed by Leo Abayan and Alexander Virtucio and
noted by Mrs. Aurora Pacho, Principal, University of San Carlos, Girls
High School, and for the record, I will read the content:
TO WHOM THIS MAY CONCERN:
We the parents and guardians of Rochelle Virtucio, a first year high
school student of your University of San Carlos-Girls High School, are
writing your good office about an untoward incident involving our
daughter and another student of your school.
33

xxxxxx
That last Monday at around 5:00 PM, Rochelle and other classmates,
Michelle Amadar and Keizaneth Mondejar, while on their way to get a
ride home near the school campus, a black Honda Civic with five young
male teenagers including the driver, suddenly stopped beside them, and
simultaneously one of them, which was later identified as FRANCISCO
JUAN LARRANAGA, a BSHRM I student of your school, grabbed
Rochelle by her hand to try to get Rochelle to their vehicle. She resisted
and got away from him. Sensing some people were watching what they
were doing, they hurriedly sped away.
We are very concerned about Rochelles safety. Still now, she is suffering
the shock and tension that she is not supposed to experience in her young
life. It is very hard for us parents to think about what shed been
through.[16]
The presence of such complaint in the record of this case certainly does not
enhance Larraagas chance of securing an acquittal.

III
Larraaga and Aznar bewail our refusal to overturn the trial courts exclusion
of Professor Jerome Bailen and Atty. Florencio Villarin, NBI, Regional
Director, as defense witnesses. Professor Bailen was properly excluded. First,
he is not a finger-print expert but an archaeologist. And second, his report
consists merely of the results of his visual inspection of the exhibits already
several months old. Anent Atty. Villarins failure to testify before the trial
court, suffice it to say that his belated Affidavit, which Aznar
submittedvia his supplemental motion for reconsideration dated May 5, 2004,
raises nothing to change our findings and conclusions. What clearly appears
in said Affidavit is a man trying toimpress people that he was the one
responsible for solving the Chiong case and for that, he deserves a promotion.
The trial court, at the onset, must have seen such immateriality in his
intended testimony. Indeed, we agree with the Solicitor Generals observation
that such Affidavit is neither helpful nor encouraging to Aznars cause. We
quote his keen reflection on the matter:
xxxxxx
Third. Atty. Villarins affidavit, in paragraphs 19 and 20 thereof,
acknowledged that the body found in the Carcar ravine was that of Marijoy.

This assertion immediately conflicts with accused-appellant Aznars claim in

his Motion for Reconsideration that the corpse was not Marijoys. Surely,
something is amiss in accused-appellant Aznars recollection of his defense.
Fourth. Atty. Villarin confirmed in paragraph 24 of his affidavit that
accused-appellant Francisco Larranaga was a suspect in the subject crimes.
Evidently, this statement completely supports this Honorable Courts findings
in its Decision dated February 3, 2004.
Fifth. In paragraph 30 of Atty. Villarins affidavit, he stated that: The arrest
of Juzman Aznar was the major breakthrough in the investigation of the
case because witnesses came out and identified Juzman Aznar as one of
those allegedly seen talking to the victims on the night they disappeared.
Hence, accused-appellant Aznar was in the beginning already a first-grade
suspect in the Chiong sisters celebrated abduction and killing.
Sixth. Atty. Villarin admitted in paragraph 36 of his affidavit that: x x x I did
not take this against [Supt. Labra] for preempting our next move to get
Juzman Aznar as we were already placing him under surveillance
because I knew [Supt. Labra] did it in his honest desire to help solve the
crime x x x. Clearly, this statement is not an indictment of the investigation
that the police undertook in the subject crimes.
Seventh. Paragraphs 37 to 40 are nothing but personal tirades against alleged
influence peddling by Mrs. Thelma Chiong, mother of the victims, and the
purportedly undue promotions of the lawyers and police officers who
unearthed the evidence against accused-appellants and successfully
prosecuted the latter. In executing the affidavit, it appears that Atty.
Villarin would want to impress that he, rather than those promoted,
deserved the promotion.
Eighth. Atty. Villarins inability to testify in the criminal cases was not due
solely to the prosecutions action. Whether he ought to testify or not was an
argument openly discussed in court. Hence, for the resulting inability, Atty.
Villarin has no one to blame but the defense lawyers who did everything to
make a mockery of the criminal proceedings.
And lastly, there is nothing in Atty. Villarins affidavit of the quality of a
smoking gun that would acquit accused-appellants of the crimes they have
been convicted. For he did not finish the police investigation of the subject
crimes; this is the long and short of his miniscule role in the instant
case. Indeed, judging by the substance of his affidavit, he would not be
testifying in case a new trial is held on anything that has not been said

and rejected heretofore, except his own unsubstantiated opinions (i.e. not
facts as required by evidentiary rules), his self-congratulatory remarks,
and his unmitigated frustration over failing to get a promotion when
almost everyone else did.[17]
Neither can we entertain at this late stage Dr. Fortuns separate study to show
that the examination conducted on the body found in Tan-awan, Carcar is
inadequate. Such study cannot be classified as newly-discovered evidence
warranting belated reception. Obviously, Larraaga could have produced it
during trial had he wished to.
IV
Knowing that the prosecutions theory highly rests on the truth of Rusia
testimony, appellants endeavor to destroy it by claiming that the body found
at the foot of a deep ravine in Tan-awan, Carcar was not that of Marijoy. We
must reiterate the reasons why we cannot give our assent to such
argument. First, Inspector Edgardo Lenizo,[18] a fingerprint expert, testified
that the fingerprints of the corpse match those of Marijoy. [19] Second, the
packaging tape and the handcuff found on the dead body were the same items
placed on Marijoy and Jacqueline while they were being detained. [20] Third,
the body had the same clothes worn by Marijoy on the day she was
abducted.[21] And fourth, the members of the Chiong family personally
identified the corpse to be that of Marijoy[22] which they eventually buried.
They erected commemorative markers at the ravine, cemetery and every
place which mattered to Marijoy. As a matter of fact, at this very moment,
appellants still fail to bring to the attention of this Court any person laying a
claim on the said body. Surely, if the body was not that of Marijoy, other
families who had lost someone of similar age and gender as Marijoy would
have surfaced and claimed the body. The above circumstances only bolster
Rusias narration that Rowen and Ariel pushed Marijoy into the deep ravine,
following Josmans instruction "to get rid" of her.
On the issue raised by appellants Uy brothers that James Andrew was only
seventeen (17) years and two hundred sixty two (262) days old at the time the
crimes were committed, the records bear that on March 1, 1999, James
Andrews birth certificate was submitted to the trial court as part of
the Formal Offer of Additional Evidence,[23] with the statement that he was
eighteen (18) years old. On March 18, 1999, appellants filed a Manifestation
of Erratum correcting in part the Formal Offer of Additional Evidence by
alleging that James Andrew was only seventeen (17) years old. [24]

34

Now, James Andrew begs leave and prays that this Court admits at this stage
of the proceedings his (1) Certificate of Live Birth issued by the National
Statistics Office, and(2) Baptismal Certificate. He prays that his penalty be
reduced, as in the case of his brother James Anthony.
The entry of James Andrews birth in the Birth Certificate is not legible, thus
it is extremely difficult for us to determine the veracity of his claim.
However, considering that minority is a significant factor in the imposition of
penalty, we find it proper to require the Solicitor General (a) to secure from
the Local Civil Registrar of Cotobato City, as well as the National Statistics
Office, a clear and legible copy of James Andrews Birth Certificate, and
thereafter, (b) to file an extensive comment on the motion for reconsideration
filed by James Andrew and James Anthony Uy, solely on James Andrews
claim of minority.
Insofar as James Anthony is concerned, we maintain his conviction and
penalty, there being nothing in his motion which warrants a reconsideration
of our Decision.
In resolving the instant motions, we have embarked on this painstaking task
of evaluating every piece and specie of evidence presented before the trial
court in response to appellants plea for the reversal of their conviction. But,
even the element of reasonable doubt so seriously sought by appellants is
an ignis fatuus which has eluded any intelligent ratiocination of their
submissions. Verily, our conscience can rest easy on our affirmance of the
verdict of the trial court, in light of appellants clear culpability which
demands retribution.
WHEREFORE, the motions for reconsideration filed by appellants
Francisco Juan Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and
Ariel Balansag are herebyDENIED. The Solicitor General
is DIRECTED (a) to secure from the Local Civil Registrar of Cotobato City,
as well as the National Statistics Office, a clear and legible copy of James
Andrews Birth Certificate, and (b) within ten (10) days therefrom, to file
an extensive comment on the motion for reconsideration filed by James
Andrew and James Anthony Uy, solely on James Andrews claim of minority.
The motion is likewise DENIED insofar as James Anthony Uy is concerned.
SO ORDERED.

35

G.R. No. L-63345

January 30, 1986

EFREN C. MONCUPA, petitioner,

vs.
JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR,
FERNANDO GOROSPE, AND JOSE CASTRO, respondents.
Lorenzo M. Tanada, Jose W. Diokno and Joker Arroyo for petitioner,
GUTIERREZ, JR., J.:
As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil.
778, 790), this Court ruled:
A prime specification of al application for a writ of habeas corpus is restraint
of liberty. The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. ...
This latitudinarian scope of the writ of habeas-corpus has, in law, remained
undiminished up to the present. The respondents' contention that the petition
has become moot and academic must necessarily be denied. Efren C.
Moncupa may have been released from his detention cell. The restraints
attached to his temporary release, however, preclude freedom of action and
under the Villavicencio v. Lukban rule warrant this Court's inquiry into the
nature of his involuntary restraint and our relieving him of such restraints as
may be illegal.
Petitioner Efren C. Moncupa, together with others, was arrested on April 22,
1982 at about 10:50 P.M., at the corner of D. Street and Quezon Avenue,
Quezon City. Moncupa D. Tuazon was brought to MIG-15 Camp Bago
Bantay, Quezon City where he was detained. On April 23, 1982, on the
allegation that he was a National Democratic Front (NDF) staff member, a
Presidential Commitment Order (PCO) was issued against him and eight (8)
other persons.
After two separate investigations, conducted first, by Lieutenant Colonel
Gerardo Lantoria, Jr., Chief of Task Force Makabansa Investigation Group
and second, by Investigating Fiscal Amado Costales of Quezon City, it was
ascertained that the petitioner was not a member of any subversive
organization. Both investigators recommended the prosecution of the

petitioner only for illegal possession of firearms and illegal possession of

subversive documents under Presidential Decree No. 33.
Consequently, two separate informations were filed against the petitioner,
one, for illegal possession of firearms before the Court of First Instance of
Rizal and the other for violation of P.D. 33 before the City Court of Quezon
City. Against the other accused, however, the cases filed were for violation of
P.D. 885 as amended. Significantly, the petitioner was excluded from the
charge under the Revised Anti-Subversion Law. During the pendency of this
petition, it is significant that his arraignment and further proceedings have not
been pursued. And yet, the petitioner's motions for bail were denied by the
lower court.

4)
He is required to report regularly to respondents or their
representatives.
The petitioner argues that although admittedly his temporary release is an
improvement upon his actual detention, the restrictions imposed by the
respondents constitute an involuntary and illegal restraint on his freedom.
The petitioner stresses that his temporary release did not render the instant
petitioner moot and academic but that "it merely shifted the inquiry from the
legality of his actual detention to the legality of the conditions imposed by the
respondents."

Hence, the petitioner filed the instant petition.

We agree with the petitioner.

The respondents, in their return of the writ justified the validity of petitioner's
detention on the ground that the privilege of the writ had been suspended as
to the petitioner. However, on August 30, 1983, the respondents filed a
motion to dismiss stating that on May 11, 1983, the petitioner was
temporarily released from detention on orders of the Minister temporary of
National Defense with the approval of the President. The respondents stated.
"Since the petitioner is free and no longer under the custody of the
respondents, the present petition for habeas corpus may be deemed moot and
academic as in similar cases.

The reservation of the military in the form of restrictions attached to the

temporary release of the petitioner constitute restraints on the liberty of Mr.
Moncupa. Such restrictions limit the freedom of movement of the petitioner.
It is not physical restraint alone which is inquired into by the writ of habeas
corpus.

The issue to be resolved is whether or not the instant petition has become
moot and academic in view of the petitioner's temporary release.
It is to be noted that attached to the petitioner's temporary release are
restrictions imposed on him. These are:
1)
His freedom of movement is curtailed by the condition that
petitioner gets the approval of respondents for any travel outside Metro
Manila.

In Villavicencio v. Lukban, the women who had been illegally seized and
transported against their will to Davao were no longer under any official
restraint. Unlike petitioner Moncupa, they were free to change their domicile
without asking for official permission. Indeed, some of them managed to
return to Manila. Yet, the Court condemned the involuntary restraints caused
by the official action, fined the Mayor of Manila and expressed the hope that
its "decision may serve to bulwark the fortifications of an orderly government
of laws and to protect individual liberty from Megal encroachment."
In the light of the above ruling, the present petition for habeas corpus has not
become moot and academic. Other precedents for such a conclusion are not
wanting.
The decision in Caunca v. Salazar (82 Phil. 851) states:

2)
His liberty of abode is restricted because prior approval of
respondents is also required in case petitioner wants to change his place of
residence.
3)
His freedom of speech is muffled by the prohibition that he should
not "participate in any interview conducted by any local or foreign mass
media representatives nor give any press release or information that is
inimical to the interest of national security."

An employment agency, regardless of the amount it may advance to a

prospective employee or maid, has absolutely no power to curtail her
freedom of movement. The fact that no physical force has been exerted to
keep her in the house of the respondent does not make less real the
deprivation of her personal freedom of movement, freedom to transfer from
one place to another, from to choose one's residence. Freedom may be lost
due to external moral compulsion, to founded or groundless fear, to erroneous
36

belief in the existence of the will. If the actual effect of such psychological
spell is to place a person at the mercy of another, the victim is entitled to the
protection of courts of justice as much as the individual who is illigally
deprived of liberty by deprived or physical coercion.

anytime despite their acquittal by a court of competent jurisdiction. We hold

that such a reservation is repugnant to the government of laws and not of men
principle. Under this principle the moment a person is acquitted on a criminal
charge he can no longer be detained or re-arrested for the same offense. This
concept is so basic and elementary that it needs no elaboration.

In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled:
Although the release in the custody of the Deputy Minister did not signify
that petitioners could once again enjoy their full freedom, the application
could have been dismissed, as it could be withdrawn by the parties
themselves. That is a purely voluntary act. When the hearing was held on
September 7, 1978, it turned out that counsel for petitioner Bonifacio V.
Tupaz could have academic in a hasty manner when he set forth the above
allegations in his manifestation of August 30, 1978, for Attorney Jose C.
Espinas, who appeared for petitioners, while conceding that there was such a
release from confinement, also alleged that it was conditioned on their
restricting their activities as labor union leaders to the premises of the Trade
Unions of the Philippines and ABSOLUTE Services, presumably in
Macaraig as well as the Ministry of labor. As the voting was to take place in
the business firm in Bataan, the acts set would nullify whatever efforts they
could have exerted. To that extent, and with the prohibition against their
going to Bataan, the restraint on liberty was undeniable. If so, the moot and
academic character of the petition was far from clear.

In effect the principle is clear. A release that renders a petition for a writ of
habeas corpus moot and academic must be one which is free from
involuntary restraints. Where a person continues to be unlawfully denied one
or more of his constitutional freedoms, where there is present a denial of due
process, where the restraints are not merely involuntary but appear to be
unnecessary, and where a deprivation of freedom originally valid has, in the
light of subsequent developments, become arbitrary, the person concerned or
those applying in his behalf may still avail themselves of the privilege of the
writ.
The respondents have failed to show why the writ may not issue and why the
restraints on the petitioner's freedom of movement should not be lifted.
WHEREFORE, the PETITION is GRANTED. The conditions attached to the
temporary release of the petitioner are declared null and void. The temporary
release of the petitioner is declared ABSOLUTE. No costs,
SO ORDERED.

More recently, we had occasion to rule squarely on whether or not a

temporary release from detention renders the petition for writ of habeas
corpus moot and academic. As in this case of Moncupa, the petitioners in
Toyoto, et al v. Hon. Fidel Ramos, et al, G.R. No. 69270, October 15, 1985,
were temporarily released from detention. The respondents filed a motion to
dismiss the petition for habeas corpus on the ground that the petitioners had
been temporarily released and their case had, therefore, become moot and
academic. The petitioners insisted, however, that their case may be
considered moot and academic only "if their release would be permanent." In
ruling for the petitioners, we said:
Ordinarily, a petition for habeas corpus becomes moot and academic when
the restraint on the liberty of the petitioners is lifted either temporarily or
permanently. We have so held in a number of cases. But the instant case
presents a different situation. The question to be resolved is whether the State
can reserve the power to re-arrest a person for an offense after a court of
competent jurisdiction has absolved him of the offense. An affirmative
answer is the one suggested by the respondents because the release of the
petitioners being merely 'temporary' it follows that they can be re-arrested at
37

[G.R. No. 139789. May 12, 2000]

visitation rights to her husband and to enjoin Erlinda and the Court of
Appeals from enforcing the visitation rights.

After due hearing, on April 5, 1999, the Court of Appeals rendered decision
the dispositive portion of which reads:

ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and

SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm

The undisputed facts are as follows: Scslx

"WHEREFORE, in the light of the foregoing disquisitions, judgment is

hereby rendered:

[G.R. No. 139808. May 12, 2000]

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA

ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.

Potenciano Ilusorio is about 86 years of age possessed of extensive property

valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was
Chairman of the Board and President of Baguio Country Club.

DECISION

On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted

matrimony and lived together for a period of thirty (30) years. In 1972, they
separated from bed and board for undisclosed reasons. Potenciano lived at
Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila
and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City.
On the other hand, Erlinda lived in Antipolo City.

PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with
her in conjugal bliss? The answer is no. Marital rights including coverture
and living in conjugal dwelling may not be enforced by the extra-ordinary
writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or
detention,[1] or by which the rightful custody of a person is withheld from
the one entitled thereto.[2] Slx
"Habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a designated time
and place, with the day and cause of his capture and detention, to do, submit
to, and receive whatsoever the court or judge awarding the writ shall consider
in that behalf."[3]
It is a high prerogative, common-law writ, of ancient origin, the great object
of which is the liberation of those who may be imprisoned without sufficient
cause.[4] It is issued when one is deprived of liberty or is wrongfully
prevented from exercising legal custody over another person.[5]
The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the
Court of Appeals and its resolution[8] dismissing the application for habeas
corpus to have the custody of her husband, lawyer Potenciano Ilusorio and
enforce consortium as the wife.
On the other hand, the petition of Potenciano Ilusorio[9] is to annul that
portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio

Out of their marriage, the spouses had six (6) children, namely: Ramon
Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia
(age 49); Marietta (age 48); and Shereen (age 39).
On December 30, 1997, upon Potencianos arrival from the United States, he
stayed with Erlinda for about five (5) months in Antipolo City. The children,
Sylvia and Erlinda (Lin), alleged that during this time, their mother gave
Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an
antidepressant drug prescribed by his doctor in New York, U.S.A. As a
consequence, Potencianos health deteriorated.

"(1) Ordering, for humanitarian consideration and upon petitioners

manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia IlusorioYap, the administrator of Cleveland Condominium or anywhere in its place,
his guards and Potenciano Ilusorios staff especially Ms. Aurora Montemayor
to allow visitation rights to Potenciano Ilusorios wife, Erlinda Ilusorio and all
her children, notwithstanding any list limiting visitors thereof, under penalty
of contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be recalled
and the herein petition for habeas corpus be DENIED DUE COURSE, as it is
hereby DISMISSED for lack of unlawful restraint or detention of the subject
of the petition.
"SO ORDERED."[12]
Hence, the two petitions, which were consolidated and are herein jointly
decided.

On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo
City a petition[10] for guardianship over the person and property of
Potenciano Ilusorio due to the latters advanced age, frail health, poor eyesight
and impaired judgment.

As heretofore stated, a writ of habeas corpus extends to all cases of illegal

confinement or detention,[13] or by which the rightful custody of a person is
withheld from the one entitled thereto. It is available where a person
continues to be unlawfully denied of one or more of his constitutional
freedoms, where there is denial of due process, where the restraints are not
merely involuntary but are unnecessary, and where a deprivation of freedom
originally valid has later become arbitrary.[14] It is devised as a speedy and
effectual remedy to relieve persons from unlawful restraint, as the best and
only sufficient defense of personal freedom.[15] Jksm

On May 31, 1998, after attending a corporate meeting in Baguio City,

Potenciano Ilusorio did not return to Antipolo City and instead lived at
Cleveland Condominium, Makati. Slxsc

The essential object and purpose of the writ of habeas corpus is to inquire
into all manner of involuntary restraint, and to relieve a person therefrom if
such restraint is illegal.[16]

On March 11, 1999, Erlinda filed with the Court of Appeals a petition for
habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged
that respondents[11] refused petitioners demands to see and visit her husband
and prohibited Potenciano from returning to Antipolo City.

To justify the grant of the petition, the restraint of liberty must be an illegal
and involuntary deprivation of freedom of action.[17] The illegal restraint of
liberty must be actual and effective, not merely nominal or moral.[18]

38

The evidence shows that there was no actual and effective detention or
deprivation of lawyer Potenciano Ilusorios liberty that would justify the
issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86
years of age, or under medication does not necessarily render him mentally
incapacitated. Soundness of mind does not hinge on age or medical condition
but on the capacity of the individual to discern his actions.
After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not
request the administrator of the Cleveland Condominium not to allow his
wife and other children from seeing or visiting him. He made it clear that he
did not object to seeing them.
As to lawyer Potenciano Ilusorios mental state, the Court of Appeals
observed that he was of sound and alert mind, having answered all the
relevant questions to the satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices.
In this case, the crucial choices revolve on his residence and the people he
opts to see or live with. The choices he made may not appeal to some of his
family members but these are choices which exclusively belong to
Potenciano. He made it clear before the Court of Appeals that he was not
prevented from leaving his house or seeing people. With that declaration, and
absent any true restraint on his liberty, we have no reason to reverse the
findings of the Court of Appeals.

case the husband refuses to see his wife for private reasons, he is at liberty to
do so without threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live
with his wife. Coverture cannot be enforced by compulsion of a writ of
habeas corpus carried out by sheriffs or by any other mesne process. That is a
matter beyond judicial authority and is best left to the man and womans free
choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for
lack of merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the
decision of the Court of Appeals insofar as it gives visitation rights to
respondent Erlinda K. Ilusorio. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ.,
concur.

With his full mental capacity coupled with the right of choice, Potenciano
Ilusorio may not be the subject of visitation rights against his free choice.
Otherwise, we will deprive him of his right to privacy. Needless to say, this
will run against his fundamental constitutional right. Es m
The Court of Appeals exceeded its authority when it awarded visitation rights
in a petition for habeas corpus where Erlinda never even prayed for such
right. The ruling is not consistent with the finding of subjects sanity.
When the court ordered the grant of visitation rights, it also emphasized that
the same shall be enforced under penalty of contempt in case of violation or
refusal to comply. Such assertion of raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of
a parent to visit a minor child but the right of a wife to visit a husband. In
39

G.R. No. L-12592

March 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
FELIPE BUSTOS, ET AL., defendants-appellants.
Kincaid and Perkins for appellants.
Acting Attorney-General Paredes, for appellee.

peace to ascertain the result of the trial, and was told by the justice of the
peace that if he wished to win he must give him P50. Not having this amount,
Sunga gave the justice nothing, and a few days later was informed that he had
lost the case. Returning again to the office of the justice of the peace in order
to appeal, the justice told him that he could still win if he would pay P50;

MALCOLM, J.:

3.
That Leoncio Quiambao, having filed a complaint for assault against
four persons, on the day of the trial the justice called him over to his house,
where he secretly gave him (Quiambao) P30; and the complaint was
thereupon shelved.

This appeal presents the specific question of whether or not the defendants
and appellants are guilty of a libel of Roman Punsalan, justice of the peace of
Macabebe and Masantol, Province of Pampanga. The appeal also submits the
larger question of the attitude which the judiciary should take interpreting and
enforcing the Libel Law in connection with the basic prerogatives of freedom
of speech and press, and of assembly and petition. For a better understanding,
the facts in the present appeal are the first narrated in the order of their
occurrence, then certain suggestive aspects relative to the rights of freedom
of speech and press and of assembly and petition are interpolated, then the
facts are tested by these principles, and, finally, judgment is rendered.

The Executive Secretary referred the papers to the judge of first instance for
the Seventh Judicial District requesting investigation, proper action, and
report. The justice of the peace was notified and denied the charges. The
judge of first instance found the first count not proved and counts 2 and 3
established. In view of this result, the judge, the Honorable Percy M. Moir,
was of the opinion "that it must be, and it is hereby, recommended to the
Governor-General that the respondent be removed from his position as justice
of the peace of Macabebe and Masantol, Province of Pampanga, and it is
ordered that the proceedings had in this case be transmitted to the Executive
Secretary."

First, the facts. In the latter part of 1915, numerous citizens of the Province of
Pampanga assembled, and prepared and signed a petition to the Executive
Secretary through the law office of Crossfield and O'Brien, and five
individuals signed affidavits, charging Roman Punsalan, justice of the peace
of Macabebe and Masantol, Pampanga, with malfeasance in office and asking
for his removal. Crossfield and O'Brien submitted this petition and these
affidavits with a complaint to the Executive Secretary. The petition
transmitted by these attorneys was signed by thirty-four citizens apparently of
considerable standing, including councilors and property owners (now the
defendants), and contained the statements set out in the information as
libelous. Briefly stated the specific charges against the justice of the peace
were.

Later the justice of the peace filled a motion for a new trial; the judge of first
instance granted the motion and reopened the hearing; documents were
introduced, including a letter sent by the municipal president and six
councilors of Masantol, Pampanga, asserting that the justice of the peace was
the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of
the peace, had instituted the charges for personal reasons; and the judge of
first instance ordered a suppression of the charges against Punsalan and
acquitted him the same. Attorneys for complainants thereupon appealed to
the Governor-General, but whether the papers were forwarded to the
Governor-General as requested the record does not disclose.

1.
That Francisca Polintan, desiring to make complaint against
Mariano de los Reyes, visited the justice of the peace, who first told her that
he would draw up complaint for P5; afterwards he said he would take P3
which she paid; also kept her in the house for four days as a servant and took
from her two chickens and twelve "gandus;"
2.
That Valentin Sunga being interested in a case regarding land which
was on trial before the justice of the peace, went to see the justice of the

Criminal action against the petitioners, now become the defendants, was
instituted on October 12, 1916, by virtue of the following information:
That on or about the month of December, 1915, in the municipality of
Macabebe, Pampanga, P. I., the said accused, voluntarily, illegally, and
criminally and with malicious intent to prejudice and defame Mr. Roman
Punsalan Serrano who was at said time and place justice of the peace of
Macabebe and Masantol of this province, wrote, signed, and published a
writing which was false, scandalous, malicious, defamatory, and libelous

against the justice of the peace Mr. Roman Punsalan Serrano, in which
writing appear among other things the following:
That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of
Macabebe, on account of the conduct observed by him heretofore, a conduct
highly improper of the office which he holds, is found to be a public
functionary who is absolutely unfair, eminently immoral and dangerous to the
community, and consequently unworthy of the office.
That this assertion of the undersigned is evidenced in a clear and positive
manner by facts so certain, so serious, and so denigrating which appear in the
affidavits attached hereto, and by other facts no less serious, but which the
undersigned refrain from citing herein for the sake of brevity and in order not
to bother too much the attention of your Honor and due to lack of sufficient
proof to substantiate them.
That should the higher authorities allow the said justice of the peace of this
town to continue in his office, the protection of the rights and interests of its
inhabitants will be illusory and utopic; rights and interest solemnly
guaranteed by the Philippine Bill of Rights, and justice in this town will not
be administered in accordance with law.
That on account of the wrongful discharge of his office and of his bad
conducts as such justice of the peace, previous to this time, some respectable
citizens of this town of Macabebe were compelled to present an
administrative case against the said Roman Punsalan Serrano before the
judge of first instance of Pampanga, in which case there were made against
him various charges which were true and certain and of different characters.
That after the said administrative case was over, the said justice of the peace,
far from charging his bad and despicable conduct, which has roused the
indignation of this town of Macabebe, subsequently performed the acts
abovementioned, as stated in the affidavits herewith attached, as if intending
to mock at the people and to show his mistaken valor and heroism.'
All of this has been written and published by the accused with deliberate
purpose of attacking the virtue, honor, and reputation of the justice of the
peace, Mr. Roman Punsalan Serrano, and thus exposing him to public hatred
contempt, and ridicule. All contrary to law.
It should be noted that the information omits paragraphs of the petition
mentioning the investigation before the judge of first instance, the affidavits
40

upon which based and concluding words, "To the Executive Secretary,
through the office of Crossfield and O'Brien."
The Honorable Percy M. Moir found all the defendants, with the exception of
Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari,
guilty and sentenced each of them to pay a fine of P10 and one thirty-second
part of the costs, or to suffer subsidiary imprisonment in case of insolvency.
New attorneys for the defense, coming into the case, after the handing down
of the decision, file on December 16, 1916, a motion for a new trial, the
principal purpose of which was to retire the objection interposed by the then
counsel for the defendants to the admission of Exhibit A consisting of the
entire administrative proceedings. The trial court denied the motion. All the
defendants, except Melecio S. Sabado and Fortunato Macalino appealed
making the following assignments of error:
1.
The court erred in overruling the motion of the convicted defendants
for a new trial.
2.
The court erred in refusing to permit the defendants to retire the
objection in advertently interposed by their counsel to the admission in
evidence of the expediente administrativo out of which the accusation in this
case arose.
3.
The court erred in sustaining the objection of the prosecution to the
introduction in evidence by the accused of the affidavits upon which the
petition forming the basis of the libelous charge was based.
4.
The court erred in not holding that the alleged libelous statement
was unqualifiedly privileged.
5.
The court erred in assuming and impliedly holding that the burden
was on the defendants to show that the alleged libelous statements were true
and free from malice.
6.

The court erred in not acquitting the defendants.

7.
The evidence adduced fails to show the guilt of the defendants
beyond a reasonable doubt. This is especially true of all the defendants,
except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes.
We have thus far taken it for granted that all the proceedings, administrative
and judicial, were properly before this court. As a matter of fact counsel for
defendants in the lower court made an improvident objection to the admission

of the administrative proceedings on the ground that the signatures were not
identified and that the same was immaterial, which objection was partially
sustained by the trial court. Notwithstanding this curious situation by reason
of which the attorney for the defense attempted to destroy through his
objection the very foundation for the justification of his clients, we shall
continue to consider all the proceedings as before us. Not indicating
specifically the reason for this action, let the following be stated: The
administrative proceedings were repeatedly mentioned during the trial. These
proceedings were the basis of the accusation, the information, the evidence,
and the judgment rendered. The prosecution cannot be understood without
knowledge of anterior action. Nothing more unjust could be imagined than to
pick out certain words which standing by themselves and unexplained are
libelous and then by shutting off all knowledge of facts which would justify
these words, to convict the accused. The records in question are attached to
the rollo, and either on the ground that the attorneys for the defense retired
the objection to the introduction of the administrative proceedings by the
prosecution, or that a new trial should have been had because under section
42 of the Code of Criminal Procedure "a case may be reopened on account of
errors at law committed at the trial," or because of the right of this court to
call in such records as are sufficiently incorporated into the complaint and are
essential to a determination of the case, or finally, because of our conceded
right to take judicial notice of official action in administrative cases and of
judicial proceedings supplemental to the basis action, we examine the record
as before us, containing not alone the trial for libel, but the proceedings
previous to that trial giving rise to it. To this action, the Government can not
explain for it was the prosecution which tried to incorporate Exhibit A into
the record.
With these facts pleading justification, before testing them by certain
principles which make up the law of libel and slander, we feel warranted in
seizing the opportunity to intrude an introductory and general discussion of
freedom of speech and press and assembly and petition in the Philippine
Islands. We conceive that the time is ripe thus to clear up certain
misapprehensions on the subject and to place these basic rights in their proper
light.
Turning to the pages of history, we state nothing new when we set down that
freedom of speech as cherished in democratic countries was unknown in the
Philippine Islands before 1900. A prime cause for revolt was consequently
ready made. Jose Rizal in "Filipinas Despues de Cien Aos" (The Philippines
a Century Hence, pages 62 et seq.) describing "the reforms sine quibus non,"
which the Filipinos insist upon, said: "

The minister, . . . who wants his reforms to be reforms, must begin by

declaring the press in the Philippines free and by instituting Filipinos
delegates.
The Filipino patriots in Spain, through the columns of "La Solidaridad" and
by other means invariably in exposing the wants of the Filipino people
demanded "liberty of the press, of cults, and associations." (See Mabini, La
Revolucion Filipina.) The Malolos Constitution, the work of the
Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of
speech and press and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a
reform so sacred to the people of these Islands and won at so dear a cost,
should now be protected and carried forward as one would protect and
preserve the covenant of liberty itself.
Next comes the period of American-Filipino cooperative effort. The
Constitution of the United States and the State constitutions guarantee to the
right of freedom of speech and press and the right of assembly and petition.
We are therefore, not surprised to find President McKinley in that Magna
Charta of Philippine Liberty, the Instructions to the Second Philippine
Commission, of April 7, 1900, laying down the inviolable rule "That no law
shall be passed abridging the freedom of speech or of the press or of the
rights of the people to peaceably assemble and petition the Government for a
redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law,
the Act of Congress of August 29, 1916, in the nature of organic acts for the
Philippines, continued this guaranty. The words quoted are not unfamiliar to
students of Constitutional Law, for they are the counterpart of the first
amendment to the Constitution of the United States, which the American
people demanded before giving their approval to the Constitution.
We mention the foregoing facts only to deduce the position never to be
forgotten for an instant that the guaranties mentioned are part and parcel of
the Organic Law of the Constitution of the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare
verbiage. The language carries with all the applicable jurisprudence of great
English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U.
S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these
principles? Volumes would inadequately answer. But included are the
following:
41

The interest of society and the maintenance of good government demand a

full discussion of public affairs. Completely liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience. A public officer must not be
too thin-skinned with reference to comment upon his official acts. Only thus
can the intelligence and the dignity of the individual be exalted. Of course,
criticism does not authorize defamation. Nevertheless, as the individual is
less than the State, so must expected criticism be born for the common good.
Rising superior to any official or set of officials, to the Chief of Executive, to
the Legislature, to the Judiciary to any or all the agencies of Government
public opinion should be the constant source of liberty and democracy.
(See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73;
Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q.
B. D., 1)
The guaranties of a free speech and a free press include the right to criticize
judicial conduct. The administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced is, therefore, a fit
subject for proper comment. If the people cannot criticize a justice of the
peace or a judge the same as any other public officer, public opinion will be
effectively muzzled. Attempted terrorization of public opinion on the part of
the judiciary would be tyranny of the basest sort. The sword of Damocles in
the hands of a judge does not hang suspended over the individual who dares
to assert his prerogative as a citizen and to stand up bravely before any
official. On the contrary, it is a duty which every one owes to society or to
the State to assist in the investigation of any alleged misconduct. It is further
the duty of all who know of any official dereliction on the part of a magistrate
or the wrongful act of any public officer to bring the facts to the notice of
those whose duty it is to inquire into and punish them. In the words of Mr.
Justice Gayner, who contributed so largely to the law of libel. "The people
are not obliged to speak of the conduct of their officials in whispers or with
bated breath in a free government, but only in a despotism." (Howarth vs.
Barlow [1906], 113 App. Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of republican
institutions and the complement of the part of free speech. Assembly means a
right on the part of citizens to meet peaceably for consultation in respect to
public affairs. Petition means that any person or group of persons can apply,
without fear of penalty, to the appropriate branch or office of the government

for a redress of grievances. The persons assembling and petitioning must, of

course, assume responsibility for the charges made.

of various officials such unintentional error will not take the case out of the
privilege.

Public policy, the welfare of society, and the orderly administration of

government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of
privilege.

In the usual case malice can be presumed from defamatory words. Privilege
destroy that presumption. The onus of proving malice then lies on the
plaintiff. The plaintiff must bring home to the defendant the existence of
malice as the true motive of his conduct. Falsehood and the absence of
probable cause will amount to proof of malice. (See White vs. Nicholls
[1845], 3 How., 266.)

The doctrine of privileged communications rests upon public policy, 'which

looks to the free and unfettered administration of justice, though, as an
incidental result, it may in some instances afford an immunity to the evildisposed and malignant slanderer.' (Abbott vs. National Bank of Commerce,
Tacoma [1899], 175 U. S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not
concerned. As to qualified privilege, it is as the words suggest a prima facie
privilege which may be lost by proof of malice. The rule is thus stated by
Lord Campbell, C. J.

A privileged communication should not be subjected to microscopic

examination to discover grounds of malice or falsity. Such excessive scrutiny
would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides. (See White vs.
Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.],
163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations of Legal
Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations;
25 Cyc. pages 385 et seq.)

A communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which has a duty, is
privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would
be slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N.
S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)

Having ascertained the attitude which should be assumed relative to the basic
rights of freedom of speech and press and of assembly and petition, having
emphasized the point that our Libel Law as a statute must be construed with
reference to the guaranties of our Organic Law, and having sketched the
doctrine of privilege, we are in a position to test the facts of this case with
these principles.

A pertinent illustration of the application of qualified privilege is a complaint

made in good faith and without malice in regard to the character or conduct
of a public official when addressed to an officer or a board having some
interest or duty in the matter. Even when the statements are found to be false,
if there is probable cause for belief in their truthfulness and the charge is
made in good faith, the mantle of privilege may still cover the mistake of the
individual. But the statements must be made under an honest sense of duty; a
self-seeking motive is destructive. Personal injury is not necessary. All
persons have an interest in the pure and efficient administration of justice and
of public affairs. The duty under which a party is privileged is sufficient if it
is social or moral in its nature and this person in good faith believes he is
acting in pursuance thereof although in fact he is mistaken. The privilege is
not defeated by the mere fact that the communication is made in intemperate
terms. A further element of the law of privilege concerns the person to whom
the complaint should be made. The rule is that if a party applies to the wrong
person through some natural and honest mistake as to the respective functions

It is true that the particular words set out in the information, if said of a
private person, might well be considered libelous per se. The charges might
also under certain conceivable conditions convict one of a libel of a
government official. As a general rule words imputing to a judge or a justice
of the peace dishonesty or corruption or incapacity or misconduct touching
him in his office are actionable. But as suggested in the beginning we do not
have present a simple case of direct and vicious accusations published in the
press, but of charges predicated on affidavits made to the proper official and
thus qualifiedly privileged. Express malice has not been proved by the
prosecution. Further, although the charges are probably not true as to the
justice of the peace, they were believed to be true by the petitioners. Good
faith surrounded their action. Probable cause for them to think that
malfeasance or misfeasance in office existed is apparent. The ends and the
motives of these citizens to secure the removal from office of a person
thought to be venal were justifiable. In no way did they abuse the
privilege. These respectable citizens did not eagerly seize on a frivolous
matter but on instances which not only seemed to them of a grave character,
42

but which were sufficient in an investigation by a judge of first instance to

convince him of their seriousness. No undue publicity was given to the
petition. The manner of commenting on the conduct of the justice of the
peace was proper. And finally the charges and the petition were submitted
through reputable attorneys to the proper functionary, the Executive
Secretary. In this connection it is sufficient to note that justices of the peace
are appointed by the Governor-General, that they may be removed by the
Governor-General upon the recommendation of a Judge of First Instance, or
on the Governor-General's own motion, and that at the time this action took
place the Executive Bureau was the office through which the GovernorGeneral acted in such matter. (See Administrative Code of 1917, secs. 203
and 229, in connection with the cases of U. S. vs. Galesa [1915], 31 Phil.,
365, and of Harrison vs. Bush, 5 E. and B., 344, holding that where defendant
was subject to removal by the sovereign, a communication to the Secretary of
State was privileged.)
The present facts are further essentially different from those established in
other cases in which private individuals have been convicted of libels of
public officials. Malice, traduction, falsehood, calumny, against the man and
not the officer, have been the causes of the verdict of guilty. (See U. S. vs.
Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513;
U. S. vs. Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for confirmation on the case
of the United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos
case, the Attorney-General says, is identical with the Felipe Bustos case, with
the exception that there has been more publicity in the present instance and
that the person to whom the charge was made had less jurisdiction than had
the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the
charge against Punsalan is in fact a privileged communication. Moreover, in
the Julio Bustos case we find wild statements, with no basis in fact, made
against reputable members of the judiciary, "to persons who could not furnish
protection." Malicious and untrue communications are not privileged. A later
case and one more directly in point to which we invite especial attention is
United States vs. Galeza ([1915], 31 Phil., 365). (Note also Yancey vs.
Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to the protection of the rules
concerning qualified privilege, growing out of constitutional guaranties in our
bill of rights. Instead of punishing citizens for an honest endeavor to improve
the public service, we should rather commend them for their good
citizenship. The defendants and appellants are acquitted with the costs de
officio. So ordered.
43

[G.R. No. 162777. August 31, 2004]

FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS,
represented by its Chairman, BENJAMIN S. ABALOS, ESMERALDA
AMORA-LADRA, in her capacity as Acting Director IV, National Capital
Judicial Region, Commission on Elections, and the SOLICITOR GENERAL,
respondents.
DECISION
AZCUNA, J.:
In this petition for prohibition with prayer for the issuance of a writ of
preliminary injunction, Francisco I. Chavez stands as a taxpayer and a citizen
asking this Court to enjoin the Commission on Elections (COMELEC) from
enforcing Section 32 of its Resolution No. 6520, dated January 6, 2004. The
assailed provision is, as follows:
Section 32. All propaganda materials such as posters, streamers, stickers or
paintings on walls and other materials showing the picture, image, or name of
a person, and all advertisements on print, in radio or on television showing
the image or mentioning the name of a person, who subsequent to the
placement or display thereof becomes a candidate for public office shall be
immediately removed by said candidate and radio station, print media or
television station within 3 days after the effectivity of these implementing
rules; otherwise, he and said radio station, print media or television station
shall be presumed to have conducted premature campaigning in violation of
Section 80 of the Omnibus Election Code.
Petitioner Chavez, on various dates, entered into formal agreements with
certain establishments to endorse their products. On August 18, 2003, he
authorized a certain Andrew So to use his name and image for 96 North, a
clothing company. Petitioner also signed Endorsement Agreements with
Konka International Plastics Manufacturing Corporation and another
corporation involved in the amusement and video games business, G-Box.
These last two agreements were entered into on October 14, 2003 and
November 10, 2003, respectively. Pursuant to these agreements, three
billboards were set up along the Balintawak Interchange of the North
Expressway. One billboard showed petitioner promoting the plastic products
of Konka International Plastics Manufacturing Corporation, and the other two
showed petitioner endorsing the clothes of 96 North. One more billboard was
set up along Roxas Boulevard showing petitioner promoting the game and
amusement parlors of G-Box.

On December 30, 2003, however, petitioner filed his certificate of candidacy

for the position of Senator under Alyansa ng Pag-asa, a tripartite alliance of
three political parties: PROMDI, REPORMA, and Aksyon Demokratiko.

The COMELEC answered petitioners request by issuing another letter, dated

February 27, 2004, wherein it ordered him to remove or cause the removal of
the billboards, or to cover them from public view pending the approval of his
request.

A close examination of the assailed provision reveals that its primary

objectives are to prohibit premature campaigning and to level the playing
field for candidates of public office, to equalize the situation between popular
or rich candidates, on one hand, and lesser-known or poorer candidates, on
the other, by preventing the former from enjoying undue advantage in
exposure and publicity on account of their resources and popularity. The
latter is a valid reason for the exercise of police power as held in National
Press Club v. COMELEC,[2] wherein the petitioners questioned the
constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited
the sale or donation of print space and air time for campaigning or other
political purposes, except to the COMELEC. The obvious intention of this
provision is to equalize, as far as practicable, the situations of rich and poor
candidates by preventing the former from enjoying the undue advantage
offered by huge campaign war chests. This Court ruled therein that this
objective is of special importance and urgency in a country which, like ours,
is characterized by extreme disparity in income distribution between the
economic elite and the rest of society, and by the prevalence of poverty, with
so many of our population falling below the poverty line.

Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be
enjoined from enforcing the assailed provision. He urges this Court to declare
the assailed provision unconstitutional as the same is allegedly (1) a gross
violation of the non-impairment clause; (2) an invalid exercise of police
power; (3) in the nature of an ex-post facto law; (4) contrary to the Fair
Elections Act; and (5) invalid due to overbreadth.

Moreover, petitioner cannot claim that the subject billboards are purely
product endorsements and do not announce nor solicit any support for his
candidacy. Under the Omnibus Election Code, election campaign or partisan
political activity is defined as an act designed to promote the election or
defeat of a particular candidate or candidates to a public office. Activities
included under this definition are:

Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of

police power? Petitioner argues that the billboards, while they exhibit his
name and image, do not at all announce his candidacy for any public office
nor solicit support for such candidacy from the electorate. They are, he
claims, mere product endorsements and not election propaganda. Prohibiting,
therefore, their exhibition to the public is not within the scope of the powers
of the COMELEC, he concludes.

(1) Forming organizations, associations, clubs, committees, or other groups

of persons for the purpose of soliciting votes and/or undertaking any
campaign for or against a candidate

This Court takes a contrary view. Police power, as an inherent attribute of

sovereignty, is the power to prescribe regulations to promote the health,
morals, peace, education, good order, or safety, and the general welfare of the
people.[1] To determine the validity of a police measure, two questions must
be asked: (1) Does the interest of the public in general, as distinguished from
those of a particular class, require the exercise of police power? and (2) Are
the means employed reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals?

(3) Making speeches, announcements or commentaries, or holding interviews

for or against the election of any candidate for public office;

On January 6, 2004, respondent COMELEC issued Resolution No. 6520,

which contained Section 32, the provision assailed herein. On January 21,
2004, petitioner was directed to comply with the said provision by the
COMELECs Law Department. He replied, on January 29, 2004, by
requesting the COMELEC that he be informed as to how he may have
violated the assailed provision. He sent another letter dated February 23,
2004, this time asking the COMELEC that he be exempted from the
application of Section 32, considering that the billboards adverted to are mere
product endorsements and cannot be construed as paraphernalia for
premature campaigning under the rules.

(2) Holding political caucuses, conferences, meetings, rallies, parades, or

other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate;

(4) Publishing or distributing campaign literature or materials designed to

support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.[3] (underscoring ours)
44

It is true that when petitioner entered into the contracts or agreements to

endorse certain products, he acted as a private individual and had all the right
to lend his name and image to these products. However, when he filed his
certificate of candidacy for Senator, the billboards featuring his name and
image assumed partisan political character because the same indirectly
promoted his candidacy. Therefore, the COMELEC was acting well within
its scope of powers when it required petitioner to discontinue the display of
the subject billboards. If the subject billboards were to be allowed, candidates
for public office whose name and image are used to advertise commercial
products would have more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do not have the same
chance of lending their faces and names to endorse popular commercial
products as image models. Similarly, an individual intending to run for public
office within the next few months, could pay private corporations to use him
as their image model with the intention of familiarizing the public with his
name and image even before the start of the campaign period. This, without a
doubt, would be a circumvention of the rule against premature campaigning:
Sec. 80. Election campaign or partisan political activity outside campaign
period. It shall be unlawful for any person, whether or not a voter or
candidate, or for any party, or association of persons, to engage in an election
campaign or partisan political activity except during the campaign period. x x
x [4]
Article IX (C) (4) of the Constitution provides:
Sec. 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication
or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible
elections.
Under the abovementioned Constitutional provision, the COMELEC is
expressly authorized to supervise or regulate the enjoyment or utilization of
all media communication or information to ensure equal opportunity, time,

and space. All these are aimed at the holding of free, orderly, honest,
peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the nonimpairment clause. The non-impairment clause of the Constitution must yield
to the loftier purposes targeted by the Government.[5] Equal opportunity to
proffer oneself for public office, without regard to the level of financial
resources one may have at his disposal, is indeed of vital interest to the
public. The State has the duty to enact and implement rules to safeguard this
interest. Time and again, this Court has said that contracts affecting public
interest contain an implied reservation of the police power as a postulate of
the existing legal order. This power can be activated at anytime to change the
provisions of the contract, or even abrogate it entirely, for the promotion or
protection of the general welfare. Such an act will not militate against the
impairment clause, which is subject to and limited by the paramount police
power.[6]
Furthermore, this Court notes that the very contracts entered into by
petitioner provide that the endorsers photograph and image shall be utilized
in whatever form, mode and manner in keeping with norms of decency,
reasonableness, morals and law;[7] and in whatever form, mode and manner
not contrary to law and norms of decency,[8] and in whatever form, mode
and manner in keeping with norms of decency, reasonableness, morals and
law.[9]
Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature
of an ex post facto law. He urges this Court to believe that the assailed
provision makes an individual criminally liable for an election offense for not
removing such advertisement, even if at the time the said advertisement was
exhibited, the same was clearly legal. Hence, it makes a person, whose name
or image is featured in any such advertisement, liable for premature
campaigning under the Omnibus Election Code.[10] A close scrutiny of this
rationale, however, demonstrates its lack of persuasiveness. Section 32,
although not penal in nature, defines an offense and prescribes a penalty for
said offense. Laws of this nature must operate prospectively, except when
they are favorable to the accused. It should be noted, however, that the
offense defined in the assailed provision is not the putting up of propaganda
materials such as posters, streamers, stickers or paintings on walls and other
materials showing the picture, image or name of a person, and all
advertisements on print, in radio or on television showing the image or
mentioning the name of a person, who subsequent to the placement or display
thereof becomes a candidate for public office. Nor does it prohibit or consider
an offense the entering of contracts for such propaganda materials by an

individual who subsequently becomes a candidate for public office. One

definitely does not commit an offense by entering into a contract with private
parties to use his name and image to endorse certain products prior to his
becoming a candidate for public office. The offense, as expressly prescribed
in the assailed provision, is the non-removal of the described propaganda
materials three (3) days after the effectivity of COMELEC Resolution No.
6520. If the candidate for public office fails to remove such propaganda
materials after the given period, he shall be liable under Section 80 of the
Omnibus Election Code for premature campaigning. Indeed, nowhere is it
indicated in the assailed provision that it shall operate retroactively. There is,
therefore, no ex post facto law in this case.
Next, petitioner urges that Section 32 is a violation of the Fair Elections Act.
According to him, under this law, billboards are already permitted as lawful
election propaganda. He claims, therefore, that the COMELEC, in effectively
prohibiting the use of billboards as a form of election propaganda through the
assailed provision, violated the Fair Elections Act. Petitioners argument is not
tenable. The Solicitor General rightly points out that the assailed provision
does not prohibit billboards as lawful election propaganda. It only regulates
their use to prevent premature campaigning and to equalize, as much as
practicable, the situation of all candidates by preventing popular and rich
candidates from gaining undue advantage in exposure and publicity on
account of their resources and popularity.[11] Moreover, by regulating the
use of such election propaganda materials, the COMELEC is merely doing its
duty under the law. Under Sections 3 and 13 of the Fair Elections Act, all
election propaganda are subject to the supervision and regulation by the
COMELEC:
SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether
on television, cable television radio, newspapers or any other medium is
hereby allowed for all registered political parties, national, regional, sectoral
parties or organizations participating under the party list elections and for all
bona fide candidates seeking national and local elective positions subject to
the limitation on authorized expenses of candidates and political parties
observance of truth in advertising and to the supervision and regulation by
the Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed
materials the size of which does not exceed eight and one half inches in width
and fourteen inches in length;
45

3.2. Handwritten or printed letters urging voters to vote for or against any
particular political party or candidate for public office;
3.3. Cloth, paper or cardboard posters whether framed or posted, with an area
not exceeding two(2) feet by three (3) feet, except that, at the site and on the
occasion of a public meeting or rally, or in announcing the holding of said
meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in
size, shall be allowed: Provided, That said streamers may be displayed five
(5) days before the date of the meeting or rally and shall be removed within
twenty-four (24) hours after said meeting or rally;
3.4. Paid advertisements in print or broadcast media: Provided, That the
advertisements shall follow the requirements set forth in Section 4 of this
Act; and

A statute or regulation is considered void for overbreadth when it offends the

constitutional principle that a governmental purpose to control or prevent
activities constitutionally subject to State regulations may not be achieved by
means that sweep unnecessarily broadly and thereby invade the area of
protected freedoms.[12]
The provision in question is limited in its operation both as to time and scope.
It only disallows the continued display of a persons propaganda materials and
advertisements after he has filed a certificate of candidacy and before the
start of the campaign period. Said materials and advertisements must also
show his name and image.

3.5. All other forms of election propaganda not prohibited by the Omnibus
Election Code or this Act.

There is no blanket prohibition of the use of propaganda materials and

advertisements. During the campaign period, these may be used subject only
to reasonable limitations necessary and incidental to achieving the purpose of
preventing premature campaigning and promoting equality of opportunities
among all candidates.

xxx

The provision, therefore, is not invalid on the ground of overbreadth.

SECTION 13. Authority of the COMELEC to Promulgate Rules; Election

Offenses. - The COMELEC shall promulgate and furnish all political parties
and candidates and the mass media entities the rules and regulations for the
implementation of this Act, consistent with the criteria established in Article
IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election
Code (Batas Pambansa Blg. 881).

WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC

Resolution No. 6520 is declared valid and constitutional. The prayer for a
Temporary Restraining Order and/or a Writ of Preliminary Injunction is
hereby DENIED. No costs.
SO ORDERED

Rules and regulations promulgated by the COMELEC under and by authority

of this Section shall take effect on the seventh day after their publication in at
least two (2) daily newspapers of general circulation. Prior to effectivity of
said rules and regulations, no political advertisement or propaganda for or
against any candidate or political party shall be published or broadcast
through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued
to implement this Act shall be an election offense punishable under the first
and second paragraphs of Section 264 of the Omnibus Election Code (Batas
Pambansa Blg. 881).
Finally, petitioner contends that Section 32 of COMELEC Resolution No.
6520 is invalid because of overbreadth.

46

[G.R. No. 155282. January 17, 2005]

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD
(MTRCB), petitioner, vs. ABS-CBN BROADCASTING CORPORATION
and LOREN LEGARDA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45 of the
1997 Rules of Court, as amended, filed by petitioner Movie and Television
Review and Classification Board (MTRCB) against ABS-CBN Broadcasting
Corporation (ABS-CBN) and former Senator Loren Legarda, respondents,
assailing the (a) Decision dated November 18, 1997,[1] and (b) Order dated
August 26, 2002[2] of the Regional Trial Court, Branch 77, Quezon City, in
Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired
Prosti-tuition, an episode of the television (TV) program The Inside Story
produced and hosted by respondent Legarda. It depicted female students
moonlighting as prostitutes to enable them to pay for their tuition fees. In the
course of the program, student prostitutes, pimps, customers, and some
faculty members were interviewed. The Philippine Womens University
(PWU) was named as the school of some of the students involved and the
facade of PWU Building at Taft Avenue, Manila conspicuously served as the
background of the episode.
The showing of The Inside Story caused uproar in the PWU community. Dr.
Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the PWU
Parents and Teachers Association filed letter-complaints[3] with petitioner
MTRCB. Both complainants alleged that the episode besmirched the name of
the PWU and resulted in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal
complaint with the MTRCB Investigating Committee, alleging among others,
that respondents (1) did not submit The Inside Story to petitioner for its

review and (2) exhibited the same without its permission, thus, violating
Section 7[4] of Presidential Decree (P.D.) No. 1986[5] and Section 3,[6]
Chapter III and Section 7,[7] Chapter IV of the MTRCB Rules and
Regulations.[8]
In their answer,[9] respondents explained that the The Inside Story is a public
affairs program, news documentary and socio-political editorial, the airing of
which is protected by the constitutional provision on freedom of expression
and of the press. Accordingly, petitioner has no power, authority and
jurisdiction to impose any form of prior restraint upon respondents.
On February 5, 1993, after hearing and submission of the parties memoranda,
the MTRCB Investigating Committee rendered a Decision, the decretal
portion of which reads:
WHEREFORE, the aforementioned premises, the respondents are ordered to
pay the sum of TWENTY THOUSAND PESOS (P20,000.00) for nonsubmission of the program, subject of this case for review and approval of the
MTRCB.
Heretofore, all subsequent programs of the The Inside Story and all other
programs of the ABS-CBN Channel 2 of the same category shall be
submitted to the Board of Review and Approval before showing; otherwise
the Board will act accordingly.[10]
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the
MTRCB, issued a Decision dated March 12, 1993 affirming the above ruling
of its Investigating Committee.[11] Respondents filed a motion for
reconsideration but was denied in a Resolution dated April 14, 1993.[12]
Respondents then filed a special civil action for certiorari with the Regional
Trial Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as
unconstitutional Sections 3(b),[13] 3(c),[14] 3(d),[15] 4,[16] 7,[17] and
11[18] of P. D. No. 1986 and Sections 3,[19] 7,[20] and 28[21] (a) of the
MTRCB Rules and Regulations;[22] (2) (in the alternative) exclude the The
Inside Story from the coverage of the above cited provisions; and (3) annul
and set aside the MTRCB Decision dated March 12, 1993 and Resolution
dated April 14, 1993. Respondents averred that the above-cited provisions

constitute prior restraint on respondents exercise of freedom of expression

and of the press, and, therefore, unconstitutional. Furthermore, the above
cited provisions do not apply to the The Inside Story because it falls under
the category of public affairs program, news documentary, or socio-political
editorials governed by standards similar to those governing newspapers.
On November 18, 1997, the RTC rendered a Decision[23] in favor of
respondents, the dispositive portion of which reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and
Resolution of MTRCB dated March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7,
and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules
do not cover the TV Program The Inside Story and other similar programs,
they being public affairs programs which can be equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all
persons acting in their behalf.
SO ORDERED.
Petitioner filed a motion for reconsideration but was denied.[24]
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all
television programs, including public affairs programs, news documentaries,
or socio-political editorials, are subject to petitioners power of review under
Section 3 (b) of P.D. No. 1986 and pursuant to this Courts ruling in Iglesia ni
Cristo vs. Court of Appeals;[25] second, television programs are more
accessible to the public than newspapers, thus, the liberal regulation of the
latter cannot apply to the former; third, petitioners power to review television
programs under Section 3(b) of P. D. No. 1986 does not amount to prior
restraint; and fourth, Section 3(b) of P. D. No. 1986 does not violate
respondents constitutional freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or
authority to review the The Inside Story prior to its exhibition or broadcast by
television.

47

The petition is impressed with merit.

The present controversy brings into focus the provisions of Section 3 of P. D.
No. 1986, partly reproduced as follows:
SEC. 3. Powers and Functions. The BOARD shall have the following
functions, powers and duties:
xxxxxx
b) To screen, review and examine all motion pictures as herein defined,
television programs, including publicity materials such as advertisements,
trailers and stills, whether such motion pictures and publicity materials be for
theatrical or non-theatrical distribution, for television broadcast or for general
viewing, imported or produced in the Philippines, and in the latter case,
whether they be for local viewing or for export.
c) To approve or disapprove, delete objectionable portions from and/or
prohibit the importation, exportation, production, copying, distribution, sale,
lease exhibition and/or television broadcast of the motion pictures, television
programs and publicity materials subject of the preceding paragraph, which,
in the judgment of the BOARD applying contemporary Filipino cultural
values as standard, are objectionable for being immoral, indecent, contrary to
law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the
importation, exportation, production, copying, distribution, sale, lease,
exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end and that no such pictures,
programs and materials as are determined by the BOARD to be objectionable
in accordance with paragraph (c) hereof shall be imported, exported,
produced, copied, reproduced, distributed, sold, leased, exhibited and/or
broadcast by television;
x x x x x x.
Vis-a-vis the foregoing provisions, our task is to decide whether or not
petitioner has the power to review the television program The Inside Story.
The task is not Herculean because it merely resurrects this Court En Bancs

ruling in Iglesia ni Cristo vs. Court of Appeals.[26] There, the Iglesia ni

Cristo sought exception from petitioners review power contending that the
term television programs under Sec. 3 (b) does not include religious
programs which are protected under Section 5, Article III of the
Constitution.[27] This Court, through Justice Reynato Puno, categorically
ruled that P.D. No. 1986 gives petitioner the power to screen, review and
examine all television programs, emphasizing the phrase all television
programs, thus:
The law gives the Board the power to screen, review and examine all
television programs. By the clear terms of the law, the Board has the power
to approve, delete x x x and/or prohibit the x x x exhibition and/or television
broadcast of x x x television programs x x x. The law also directs the Board
to apply contemporary Filipino cultural values as standard to determine those
which are objectionable for being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines and
its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime.
Settled is the rule in statutory construction that where the law does not make
any exception, courts may not except something therefrom, unless there is
compelling reason apparent in the law to justify it.[28] Ubi lex non distinguit
nec distinguere debemos. Thus, when the law says all television programs,
the word all covers all television programs, whether religious, public affairs,
news documentary, etc.[29] The principle assumes that the legislative body
made no qualification in the use of general word or expression.[30]
It then follows that since The Inside Story is a television program, it is within
the jurisdiction of the MTRCB over which it has power of review.
Here, respondents sought exemption from the coverage of the term television
programs on the ground that the The Inside Story is a public affairs program,
news documentary and socio-political editorial protected under Section 4,[31]
Article III of the Constitution. Albeit, respondents basis is not freedom of
religion, as in Iglesia ni Cristo,[32] but freedom of expression and of the
press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is
significant to note that in Iglesia ni Cristo, this Court declared that freedom of
religion has been accorded a preferred status by the framers of our
fundamental laws, past and present, designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs x
x x. Yet despite the fact that freedom of religion has been accorded a

preferred status, still this Court, did not exempt the Iglesia ni Cristos religious
program from petitioners review power.
Respondents claim that the showing of The Inside Story is protected by the
constitutional provision on freedom of speech and of the press. However,
there has been no declaration at all by the framers of the Constitution that
freedom of expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the
jurisdiction and review power of petitioner MTRCB, with more reason, there
is no justification to exempt therefrom The Inside Story which, according to
respondents, is protected by the constitutional provision on freedom of
expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCBs power of review are those expressly
mentioned in Section 7 of P. D. No. 1986, such as (1) television programs
imprinted or exhibited by the Philippine Government and/or its departments
and agencies, and (2) newsreels. Thus:
SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any
person or entity to exhibit or cause to be exhibited in any moviehouse,
theatre, or public place or by television within the Philippines any motion
picture, television program or publicity material, including trailers, and stills
for lobby displays in connection with motion pictures, not duly authorized by
the owner or his assignee and passed by the BOARD; or to print or cause to
be printed on any motion picture to be exhibited in any theater or public place
or by television a label or notice showing the same to have been officially
passed by the BOARD when the same has not been previously authorized,
except motion pictures, television programs or publicity material imprinted or
exhibited by the Philippine Government and/or its departments and agencies,
and newsreels.
Still in a desperate attempt to be exempted, respondents contend that the The
Inside Story falls under the category of newsreels.
Their contention is unpersuasive.

48

P. D. No. 1986 does not define newsreels. Websters dictionary defines

newsreels as short motion picture films portraying or dealing with current
events.[33] A glance at actual samples of newsreels shows that they are
mostly reenactments of events that had already happened. Some concrete
examples are those of Dziga Vertovs Russian Kino-Pravda newsreel series
(Kino-Pravda means literally film-truth, a term that was later translated
literally into the French cinema verite) and Frank Capras Why We Fight
series.[34] Apparently, newsreels are straight presentation of events. They are
depiction of actualities. Correspondingly, the MTRCB Rules and
Regulations[35] implementing P. D. No. 1986 define newsreels as straight
news reporting, as distinguished from news analyses, commentaries and
opinions. Talk shows on a given issue are not considered newsreels.[36]
Clearly, the The Inside Story cannot be considered a newsreel. It is more of a
public affairs program which is described as a variety of news treatment; a
cross between pure television news and news-related commentaries, analysis
and/or exchange of opinions.[37] Certainly, such kind of program is within
petitioners review power.

decision on the constitutional or legal question must be necessary to the

determination of the case itself.[38]
WHEREFORE, the instant petition is GRANTED. The assailed RTC
Decision dated November 18, 1997 and Order dated August 26, 2002 are
hereby REVERSED. The Decision dated March 12, 1993 of petitioner
MTRCB is AFFIRMED. Costs against respondents.
SO ORDERED.

It bears stressing that the sole issue here is whether petitioner MTRCB has
authority to review The Inside Story. Clearly, we are not called upon to
determine whether petitioner violated Section 4, Article III (Bill of Rights) of
the Constitution providing that no law shall be passed abridging the freedom
of speech, of oppression or the press. Petitioner did not disapprove or ban the
showing of the program. Neither did it cancel respondents permit.
Respondents were merely penalized for their failure to submit to petitioner
The Inside Story for its review and approval. Therefore, we need not resolve
whether certain provisions of P. D. No. 1986 and the MTRCB Rules and
Regulations specified by respondents contravene the Constitution.
Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7
and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules
and Regulations are unconstitutional. It is settled that no question involving
the constitutionality or validity of a law or governmental act may be heard
and decided by the court unless there is compliance with the legal requisites
for judicial inquiry, namely: (1) that the question must be raised by the proper
party; (2) that there must be an actual case or controversy; (3) that the
question must be raised at the earliest possible opportunity; and, (4) that the
49

G.R. No. L-65366

November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC),

petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:+.wph!1
This Court, in this case of first impression, at least as to some aspects, is
called upon to delineate the boundaries of the protected area of the cognate
rights to free speech and peaceable assembly, 1 against an alleged intrusion
by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L.
Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of
Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to
5:00 in the afternoon, starting from the Luneta, a public park, to the gates of
the United States Embassy, hardly two blocks away. Once there, and in an
open space of public property, a short program would be held. 2 During the
course of the oral argument, 3 it was stated that after the delivery of two brief
speeches, a petition based on the resolution adopted on the last day by the
International Conference for General Disbarmament, World Peace and the
Removal of All Foreign Military Bases held in Manila, would be presented to
a representative of the Embassy or any of its personnel who may be there so
that it may be delivered to the United States Ambassador. The march would
be attended by the local and foreign participants of such conference. There
was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps
would be taken by it "to ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of
preliminary mandatory injunction on October 20, 1983 was due to the fact
that as of that date, petitioner had not been informed of any action taken on
his request on behalf of the organization to hold a rally. On October 25, 1983,

the answer of respondent Mayor was filed on his behalf by Assistant Solicitor
General Eduardo G. Montenegro. 5 It turned out that on October 19, such
permit was denied. Petitioner was unaware of such a fact as the denial was
sent by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability of issuing
such permit at this time and at the place applied for." 6 To be more specific,
reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or
congregations where a large number of people is expected to attend." 7
Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for
the rally if it is to be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general public may be
ensured." 8
The oral argument was heard on October 25, 1983, the very same day the
answer was filed. The Court then deliberated on the matter. That same
afternoon, a minute resolution was issued by the Court granting the
mandatory injunction prayed for on the ground that there was no showing of
the existence of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was unanimous, but
there was a dissent by Justice Aquino on the ground that the holding of a rally
in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This
resolution is without prejudice to a more extended opinion." 9 Hence this
detailed exposition of the Court's stand on the matter.
1.
It is thus clear that the Court is called upon to protect the exercise of
the cognate rights to free speech and peaceful assembly, arising from the
denial of a permit. The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of
grievances." 10 Free speech, like free press, may be Identified with the
liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12
prosecution for sedition, 13 or action for damages, 14 or contempt

proceedings 15 unless there be a clear and present danger of a substantive

evil that [the State] has a right to prevent." 16 Freedom of assembly connotes
the right people to meet peaceably for consultation and discussion of matters
Of public concern. 17 It is entitled to be accorded the utmost deference and
respect. It is hot to be limited, much less denied, except on a showing, as 's
the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. 18 Even prior to the 1935
Constitution, Justice Maicolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free
speech. 19 To paraphrase opinion of Justice Rutledge speaking for the
majority of the American Supreme Court Thomas v. Collins, 20 it was not by
accident or coincidence that the right to freedom of speech and of the press
were toupled in a single guarantee with the and to petition the rights of the
people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not Identical, are inseparable. the every
case, therefo re there is a limitation placed on the exercise of this right, the
judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the exercise
of this right, so fundamental to the maintenance of democratic institutions, is
the danger, of a character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public interest. 21
2.
Nowhere is the rationale that underlies the freedom of expression
and peaceable assembly better expressed than in this excerpt from an opinion
of Justice Frankfurter: "It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful means
for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of
free speech was given a generous scope. But utterance in a context of
violence can lose its significance as an appeal to reason and become part of
an instrument of force. Such utterance was not meant to be sheltered by the
Constitution." 22 What was rightfully stressed is the abandonment of reason,
the utterance, whether verbal or printed, being in a context of violence. It
must always be remembered that this right likewise provides for a safety
valve, allowing parties the opportunity to give vent to their-views, even if
contrary to the prevailing climate of opinion. For if the peaceful means of
50

communication cannot be availed of, resort to non-peaceful means may be

the only alternative. Nor is this the sole reason for the expression of dissent.
It means more than just the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as they are. Its value may lie in
the fact that there may be something worth hearing from the dissenter. That is
to ensure a true ferment of Ideas. There are, of course, well-defined limits.
What is guaranteed is peaceable assembly. One may not advocate disorder in
the name of protest, much less preach rebellion under the cloak of dissent.
The Constitution frowns on disorder or tumult attending a rally or assembly.
resort to force is ruled out and outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed out in an early Philippine
case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather
to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and
the greater the grievance and the more intense the feeling, the less perfect, as
a rule, will be the disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to be
invoked, riotous conduct, injury to property, and acts of vandalism must be
avoided, To give free rein to one's destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
3.
There can be no legal objection, absent the existence of a clear and
present danger of a substantive evil, on the choice of Luneta as the place
where the peace rally would start. The Philippines is committed to the view
expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in
Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets and
public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good order; but it must

not, in the guise of regulation, be abridged or denied. 26 The above excerpt

was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit
what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision,
where this Court categorically affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified a contract that leased Plaza
Soledad of plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use," 29 which certainly is not the only purpose that it
could serve. To repeat, there can be no valid reason why a permit should not
be granted for the or oposed march and rally starting from a public dark that
is the Luneta.
4.
Neither can there be any valid objection to the use of the streets, to
the gates of the US Embassy, hardly two block-away at the Roxas Boulevard.
Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding
that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared:
"Our conclusion finds support in the decision in the case of Willis Cox vs.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession
upon any ground abutting thereon, shall 'De permitted unless a special license
therefor shall first be explained from the selectmen of the town or from
licensing committee,' was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfettered discretion to
refuse to grant the license, and held valid. And the Supreme Court of the
United States, in its decision (1941) penned by Chief Justice Hughes
affirming the judgment of the State Supreme Court, held that 'a statute
requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of speech
and press, where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration
of the time, place, and manner of the parade or procession, with a view to
conserving the public convenience and of affording an opportunity to provide
proper policing, and are not invested with arbitrary discretion to issue or
refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in
a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed
by the Constitution, imply the existence of an organized society maintaining

public order without which liberty itself would be lost in the excesses of
unrestricted abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but
rather as one of the means of safeguarding the good order upon which they
ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of
the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances would be entitled to
protection." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no
question, as noted, would have arisen. So, too, if the march would end at
another park. As previously mentioned though, there would be a short
program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing
over of a petition based on the resolution adopted at the closing session of the
Anti-Bases Coalition. The Philippines is a signatory of the Vienna
Convention on Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument of ratification
was signed by the President on October 11, 1965, and was thereafter
deposited with the Secretary General of the United Nations on November 15.
As of that date then, it was binding on the Philippines. The second paragraph
of the Article 22 reads: "2. The receiving State is under a special duty to take
appropriate steps to protect the premises of the mission against any intrusion
or damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity. " 32 The Constitution "adopts the generally
accepted principles of international law as part of the law of the land. ..." 33
To the extent that the Vienna Convention is a restatement of the generally
accepted principles of international law, it should be a part of the law of the
land. 34 That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or
impairment of its dignity, there would be a justification for the denial of the
permit insofar as the terminal point would be the Embassy. Moreover,
respondent Mayor relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius
51

of five hundred (500) feet from any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or declared ultra vires, its
invocation as a defense is understandable but not decisive, in view of the
primacy accorded the constitutional rights of free speech and peaceable
assembly. Even if shown then to be applicable, that question the confronts
this Court.
6.
There is merit to the observation that except as to the novel aspects
of a litigation, the judgment must be confined within the limits of previous
decisions. The law declared on past occasions is, on the whole, a safe guide,
So it has been here. Hence, as noted, on the afternoon of the hearing, October
25, 1983, this Court issued the minute resolution granting the mandatory
injunction allowing the proposed march and rally scheduled for the next day.
That conclusion was inevitable ill the absence of a clear and present danger
of a substantive, evil to a legitimate public interest. There was no justification
then to deny the exercise of the constitutional rights of tree speech and
peaceable assembly. These rights are assured by our Constitution and the
Universal Declaration of Human Rights. 35 The participants to such
assembly, composed primarily of those in attendance at the International
Conference for General Disbarmament, World Peace and the Removal of All
Foreign Military Bases would start from the Luneta. proceeding through
Roxas Boulevard to the gates of the United States Embassy located at the
same street. To repeat, it is settled law that as to public places, especially so
as to parks and streets, there is freedom of access. Nor is their use dependent
on who is the applicant for the permit, whether an individual or a group. If it
were, then the freedom of access becomes discriminatory access, giving rise
to an equal protection question. The principle under American doctrines was
given utterance by Chief Justice Hughes in these words: "The question, if the
rights of free speech and peaceable assembly are to be preserved, is not as to
the auspices under which the meeting is held but as to its purpose; not as to
The relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects." 36 There
could be danger to public peace and safety if such a gathering were marked
by turbulence. That would deprive it of its peaceful character. Even then,
only the guilty parties should be held accountable. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered

discretion. While prudence requires that there be a realistic appraisal not of

what may possibly occur but of what may probably occur, given all the
relevant circumstances, still the assumption especially so where the
assembly is scheduled for a specific public place is that the permit must be
for the assembly being held there. The exercise of such a right, in the
language of Justice Roberts, speaking for the American Supreme Court, is not
to be "abridged on the plea that it may be exercised in some other place." 37
7.
In fairness to respondent Mayor, he acted on the belief that Navarro
v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v.
Bagatsing, 39 called for application. While the General rule is that a permit
should recognize the right of the applicants to hold their assembly at a public
place of their choice, another place may be designated by the licensing
authority if it be shown that there is a clear and present danger of a
substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present
danger test was satisfied. The present situation is quite different. Hence the
decision reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice. Not that it should be
overlooked. There was in this case, however, the assurance of General
Narciso Cabrera, Superintendent, Western Police District, Metropolitan
Police Force, that the police force is in a position to cope with such
emergency should it arise That is to comply with its duty to extend protection
to the participants of such peaceable assembly. Also from him came the
commendable admission that there were the least five previous
demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the
United States Embassy where no untoward event occurred. It was made clear
by petitioner, through counsel, that no act offensive to the dignity of the
United States Mission in the Philippines would take place and that, as
mentioned at the outset of this opinion, "all the necessary steps would be
taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor
General Montenegro expressed the view that the presence of policemen may
in itself be a provocation. It is a sufficient answer that they should stay at a
discreet distance, but ever ready and alert to cope with any contingency.
There is no need to repeat what was pointed out by Chief Justice Hughes in
Cox that precisely, it is the duty of the city authorities to provide the proper
police protection to those exercising their right to peaceable assembly and
freedom of expression.

8.
By way of a summary The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the public place
where and the time when it will take place. If it were a private place, only the
consent of the owner or the one entitled to its legal possession is required.
Such application should be filed well ahead in time to enable the public
official concerned to appraise whether there may be valid objections to the
grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a substantive evil,
the applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest opportunity.
Thus if so minded, then, can have recourse to the proper judicial authority.
Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary, even more so than on the
other departments rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitiously
termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do precedence and
primacy. Clearly then, to the extent that there may be inconsistencies between
this resolution and that of Navarro v. Villegas, that case is pro tanto modified.
So it was made clear in the original resolution of October 25, 1983.
9.
Respondent Mayor posed the issue of the applicability of Ordinance
No. 7295 of the City of Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. It is to be admitted that it finds
support In the previously quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing, however, that the distance
between the chancery and the embassy gate is less than 500 feet. Even if it
could be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial
of the permit sought could still be challenged. It could be argued that a case
of unconstitutional application of such ordinance to the exercise of the right
of peaceable assembly presents itself. As in this case there was no proof that
52

the distance is less than 500 feet, the need to pass on that issue was obviated,
Should it come, then the qualification and observation of Justices Makasiar
and Plana certainly cannot be summarily brushed aside. The high estate
accorded the rights to free speech and peaceable assembly demands nothing
less.
10.
Ordinarily, the remedy in cases of this character is to set aside the
denial or the modification of the permit sought and order the respondent
official, to grant it. Nonetheless, as there was urgency in this case, the
proposed march and rally being scheduled for the next day after the hearing,
this Court. in the exercise of its conceded authority, granted the mandatory
injunction in the resolution of October 25, 1983. It may be noted that the
peaceful character of the peace march and rally on October 26 was not
marred by any untoward incident. So it has been in other assemblies held
elsewhere. It is quite reassuring such that both on the part of the national
government and the citizens, reason and moderation have prevailed. That is
as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.

53

ALEJANDRO ESTRADA, A.M. No. P-02-1651

Complainant, (formerly OCA I.P.I. No. 00-1021-P)
Present:
PANGANIBAN, CJ.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
-versus- CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.
Promulgated:
SOLEDAD S. ESCRITOR,
Respondent. June 22, 2006
x--------------------------------------------------x
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent
Soledad Escritor once again stands before the Court invoking her religious
freedom and her Jehovah God in a bid to save her family united without the
benefit of legal marriage - and livelihood. The State, on the other hand, seeks
to wield its power to regulate her behavior and protect its interest in marriage
and family and the integrity of the courts where respondent is an employee.
How the Court will tilt the scales of justice in the case at bar will decide not
only the fate of respondent Escritor but of other believers coming to Court
bearing grievances on their free exercise of religion. This case comes to us
from our remand to the Office of the Court Administrator on August 4,
2003.[1]

I. THE PAST PROCEEDINGS

In a sworn-letter complaint dated July 27, 2000, complainant Alejandro
Estrada requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Pias City, for an investigation of respondent
Soledad Escritor, court interpreter in said court, for living with a man not her
husband, and having borne a child within this live-in arrangement. Estrada
believes that Escritor is committing an immoral act that tarnishes the image
of the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act.[2] Consequently, respondent
was charged with committing disgraceful and immoral conduct under Book
V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. [3]
Respondent Escritor testified that when she entered the judiciary in 1999, she
was already a widow, her husband having died in 1998.[4] She admitted that
she started living with Luciano Quilapio, Jr. without the benefit of marriage
more than twenty years ago when her husband was still alive but living with
another woman. She also admitted that she and Quilapio have a son.[5] But
as a member of the religious sect known as the Jehovahs Witnesses and the
Watch Tower and Bible Tract Society, respondent asserted that their conjugal
arrangement is in conformity with their religious beliefs and has the approval
of her congregation.[6] In fact, after ten years of living together, she executed
on July 28, 1991, a Declaration of Pledging Faithfulness.[7]
For Jehovahs Witnesses, the Declaration allows members of the congregation
who have been abandoned by their spouses to enter into marital relations. The
Declaration thus makes the resulting union moral and binding within the
congregation all over the world except in countries where divorce is allowed.
As laid out by the tenets of their faith, the Jehovahs congregation requires
that at the time the declarations are executed, the couple cannot secure the
civil authorities approval of the marital relationship because of legal
impediments. Only couples who have been baptized and in good standing
may execute the Declaration, which requires the approval of the elders of the
congregation. As a matter of practice, the marital status of the declarants and
their respective spouses commission of adultery are investigated before the
declarations are executed.[8] Escritor and Quilapios declarations were
executed in the usual and approved form prescribed by the Jehovahs
Witnesses,[9] approved by elders of the congregation where the declarations
were executed,[10] and recorded in the Watch Tower Central Office.[11]

Moreover, the Jehovahs congregation believes that once all legal

impediments for the couple are lifted, the validity of the declarations ceases,
and the couple should legalize their union. In Escritors case, although she
was widowed in 1998, thereby lifting the legal impediment to marry on her
part, her mate was still not capacitated to remarry. Thus, their declarations
remained valid.[12] In sum, therefore, insofar as the congregation is
concerned, there is nothing immoral about the conjugal arrangement between
Escritor and Quilapio and they remain members in good standing in the
congregation.
By invoking the religious beliefs, practices and moral standards of her
congregation, in asserting that her conjugal arrangement does not constitute
disgraceful and immoral conduct for which she should be held
administratively liable,[13] the Court had to determine the contours of
religious freedom under Article III, Section 5 of the Constitution, which
provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
A. RULING
In our decision dated August 4, 2003, after a long and arduous scrutiny into
the origins and development of the religion clauses in the United States
(U.S.) and the Philippines, we held that in resolving claims involving
religious freedom (1) benevolent neutrality or accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the
religion clauses in our Constitution; and (2) in deciding respondents plea of
exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest
test, which must be applied.[14]
Notwithstanding the above rulings, the Court could not, at that time, rule
definitively on the ultimate issue of whether respondent was to be held
administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more compelling interest to defeat the claim of
54

the respondent to religious freedom. Thus, in the decision dated August 4,

2003, we remanded the complaint to the Office of the Court Administrator
(OCA), and ordered the Office of the Solicitor General (OSG) to intervene in
the case so it can:
(a)
examine the sincerity and centrality of respondents claimed religious
belief and practice;
(b)
present evidence on the states compelling interest to override
respondents religious belief and practice; and
(c)
show that the means the state adopts in pursuing its interest is the least
restrictive to respondents religious freedom. [15]
It bears stressing, therefore, that the residual issues of the case pertained NOT
TO WHAT APPROACH THIS COURT SHOULD TAKE IN
CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER
TEST APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION
BASED ON FREEDOM OF RELIGION. These issues have already been
ruled upon prior to the remand, and constitute the law of the case insofar as
they resolved the issues of which framework and test are to be applied in this
case, and no motion for its reconsideration having been filed.[16] The only
task that the Court is left to do is to determine whether the evidence adduced
by the State proves its more compelling interest. This issue involves a pure
question of fact.
B. LAW OF THE CASE
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this
case interpreting the religious clauses of the Constitution, made more than
two years ago, is misplaced to say the least. Since neither the complainant,
respondent nor the government has filed a motion for reconsideration
assailing this ruling, the same has attained finality and constitutes the law of
the case. Any attempt to reopen this final ruling constitutes a crass
contravention of elementary rules of procedure. Worse, insofar as it would
overturn the parties right to rely upon our interpretation which has long
attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and
substantive infirmities in Mr. Justice Carpios belated attempts to disturb

settled issues, and that he had timely presented his arguments, the results
would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. OLD WORLD ANTECEDENTS
In our August 4, 2003 decision, we made a painstaking review of Old World
antecedents of the religion clauses, because one cannot understand, much less
intelligently criticize the approaches of the courts and the political branches
to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval
world and in the American experience.[17] We delved into the conception of
religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.[18]
Then, religion developed on its own and became superior to the state,[19] its
subordinate,[20] and even becoming an engine of state policy.[21]
We ascertained two salient features in the review of religious history: First,
with minor exceptions, the history of church-state relationships was
characterized by persecution, oppression, hatred, bloodshed, and war, all in
the name of the God of Love and of the Prince of Peace. Second, likewise
with minor exceptions, this history witnessed the unscrupulous use of religion
by secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the
favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religions invaluable service. This was the context in which the
unique experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional democracy and in
human history. [22]
Strictly speaking, the American experiment of freedom and separation was
not translated in the First Amendment. That experiment had been launched
four years earlier, when the founders of the republic carefully withheld from
the new national government any power to deal with religion. As James
Madison said, the national government had no jurisdiction over religion or
any shadow of right to intermeddle with it. [23]
The omission of an express guaranty of religious freedom and other natural
rights, however, nearly prevented the ratification of the Constitution. The
restriction had to be made explicit with the adoption of the religion clauses in
the First Amendment as they are worded to this day. Thus, the First

Amendment did not take away or abridge any power of the national
government; its intent was to make express the absence of power.[24] It
commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof. [25]
The Establishment and Free Exercise Clauses, it should be noted, were not
designed to serve contradictory purposes. They have a single goalto promote
freedom of individual religious beliefs and practices. In simplest terms, the
Free Exercise Clause prohibits government from inhibiting religious beliefs
with penalties for religious beliefs and practice, while the Establishment
Clause prohibits government from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the two religion clauses were
intended to deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices.[26]
In sum, a review of the Old World antecedents of religion shows the
movement of establishment of religion as an engine to promote state
interests, to the principle of non-establishment to allow the free exercise of
religion.
2. RELIGION CLAUSES IN THE U.S. CONTEXT
The Court then turned to the religion clauses interpretation and construction
in the United States, not because we are bound by their interpretation, but
because the U.S. religion clauses are the precursors to the Philippine religion
clauses, although we have significantly departed from the U.S. interpretation
as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has
been volatile and fraught with inconsistencies whether within a Court
decision or across decisions. For while there is widespread agreement
regarding the value of the First Amendment religion clauses, there is an
equally broad disagreement as to what these clauses specifically require,
permit and forbid. No agreement has been reached by those who have studied
the religion clauses as regards its exact meaning and the paucity of records in
the U.S. Congress renders it difficult to ascertain its meaning.[27]
U.S. history has produced two identifiably different, even opposing, strains of
jurisprudence on the religion clauses. First is the standard of separation,
which may take the form of either (a) strict separation or (b) the tamer
55

version of strict neutrality or separation, or what Mr. Justice Carpio refers to

as the second theory of governmental neutrality. Although the latter form is
not as hostile to religion as the former, both are anchored on the Jeffersonian
premise that a wall of separation must exist between the state and the Church
to protect the state from the church.[28] Both protect the principle of churchstate separation with a rigid reading of the principle. On the other hand, the
second standard, the benevolent neutrality or accommodation, is buttressed
by the view that the wall of separation is meant to protect the church from the
state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to
protect the state from the church, and the states hostility towards religion
allows no interaction between the two. According to this Jeffersonian view,
an absolute barrier to formal interdependence of religion and state needs to be
erected. Religious institutions could not receive aid, whether direct or
indirect, from the state. Nor could the state adjust its secular programs to
alleviate burdens the programs placed on believers.[29] Only the complete
separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views,
thus a strict wall of separation is necessary. [30]
Strict separation faces difficulties, however, as it is deeply embedded in
American history and contemporary practice that enormous amounts of aid,
both direct and indirect, flow to religion from government in return for huge
amounts of mostly indirect aid from religion.[31] For example, less than
twenty-four hours after Congress adopted the First Amendments prohibition
on laws respecting an establishment of religion, Congress decided to express
its thanks to God Almighty for the many blessings enjoyed by the nation with
a resolution in favor of a presidential proclamation declaring a national day
of Thanksgiving and Prayer.[32] Thus, strict separationists are caught in an
awkward position of claiming a constitutional principle that has never existed
and is never likely to.[33]
The tamer version of the strict separationist view, the strict neutrality or
separationist view, (or, the governmental neutrality theory) finds basis in
Everson v. Board of Education,[34] where the Court declared that Jeffersons
wall of separation encapsulated the meaning of the First Amendment.
However, unlike the strict separationists, the strict neutrality view believes
that the wall of separation does not require the state to be their adversary.

Rather, the state must be neutral in its relations with groups of religious
believers and non-believers. State power is no more to be used so as to
handicap religions than it is to favor them.[35] The strict neutrality approach
is not hostile to religion, but it is strict in holding that religion may not be
used as a basis for classification for purposes of governmental action,
whether the action confers rights or privileges or imposes duties or
obligations. Only secular criteria may be the basis of government action. It
does not permit, much less require, accommodation of secular programs to
religious belief.[36]
The problem with the strict neutrality approach, however, is if applied in
interpreting the Establishment Clause, it could lead to a de facto voiding of
religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v.
Schempp,[37] strict neutrality could lead to a brooding and pervasive
devotion to the secular and a passive, or even active, hostility to the religious
which is prohibited by the Constitution.[38] Professor Laurence Tribe
commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very
idea of a free exercise clause. The Framers, whatever specific applications
they may have intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free exercise of religion
but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the [U.S.] Supreme Court
has rejected strict neutrality, permitting and sometimes mandating religious
classifications.[39]
Thus, the dilemma of the separationist approach, whether in the form of strict
separation or strict neutrality, is that while the Jeffersonian wall of separation
captures the spirit of the American ideal of church-state separation, in real
life, church and state are not and cannot be totally separate. This is all the
more true in contemporary times when both the government and religion are
growing and expanding their spheres of involvement and activity, resulting in
the intersection of government and religion at many points.[40]
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a
different view of the wall of separation, associated with Williams, founder of
the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect

the state from the church, the wall is meant to protect the church from the
state.[41] This doctrine was expressed in Zorach v. Clauson,[42] which held,
viz:
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines
the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter.
Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; so help me God in our
courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the
First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: God save the United
States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being.
We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our traditions.
For it then respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not would be to
find in the Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional requirement
which makes it necessary for government to be hostile to religion and to
throw its weight against efforts to widen their effective scope of religious
influence. [43]
Benevolent neutrality recognizes that religion plays an important role in the
public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of In God We Trust on American currency;
the recognition of America as one nation under God in the official pledge of
56

allegiance to the flag; the Supreme Courts time-honored practice of opening

oral argument with the invocation God save the United States and this
Honorable Court; and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination, to lead
representatives in prayer. These practices clearly show the preference for one
theological viewpointthe existence of and potential for intervention by a
godover the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing and
in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral
dimension. [44]
Examples of accommodations in American jurisprudence also abound,
including, but not limited to the U.S. Court declaring the following acts as
constitutional: a state hiring a Presbyterian minister to lead the legislature in
daily prayers,[45] or requiring employers to pay workers compensation when
the resulting inconsistency between work and Sabbath leads to discharge;[46]
for government to give money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior;[47] or to provide religious school
pupils with books;[48] or bus rides to religious schools;[49] or with cash to
pay for state-mandated standardized tests.[50]
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the
Religion clauses are invoked in relation to governmental action, almost
invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion
will be challenged as unconstitutional, either because it violates the Free
Exercise Clause or the Establishment Clause or both. This is true whether one
subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.
But the more difficult religion cases involve legislative acts which have a
secular purpose and general applicability, but may incidentally or
inadvertently aid or burden religious exercise. Though the government action
is not religiously motivated, these laws have a burdensome effect on religious
exercise.
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the governments favored form of religion, but to allow individuals

and groups to exercise their religion without hindrance. The purpose of

accommodations is to remove a burden on, or facilitate the exercise of, a
persons or institutions religion. As Justice Brennan explained, the
government [may] take religion into accountto exempt, when possible, from
generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious
exercise may flourish.[51] In the ideal world, the legislature would recognize
the religions and their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened may turn to the courts for
protection.[52]
Thus, what is sought under the theory of accommodation is not a declaration
of unconstitutionality of a facially neutral law, but an exemption from its
application or its burdensome effect, whether by the legislature or the
courts.[53] Most of the free exercise claims brought to the U.S. Court are for
exemption, not invalidation of the facially neutral law that has a burdensome
effect.[54]
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in
the U.S. blossomed in the case of Sherbert v. Verner,[55] which ruled that
state regulation that indirectly restrains or punishes religious belief or
conduct must be subjected to strict scrutiny under the Free Exercise
Clause.[56] According to Sherbert, when a law of general application
infringes religious exercise, albeit incidentally, the state interest sought to be
promoted must be so paramount and compelling as to override the free
exercise claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to
work on Saturdays on religious grounds. Her claim was denied. She sought
recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the
Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina
Supreme Court is to withstand appellants constitutional challenge, it must be

either because her disqualification as a beneficiary represents no infringement

by the State of her constitutional right of free exercise, or because any
incidental burden on the free exercise of appellants religion may be justified
by a compelling state interest in the regulation of a subject within the States
constitutional power to regulate. . . .[57] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.[58] The Court
found that there was no such compelling state interest to override Sherberts
religious liberty. It added that even if the state could show that Sherberts
exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state
to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however,
did not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to
choose between receiving benefits and following her religion. This choice
placed the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship. This germinal case of
Sherbert firmly established the exemption doctrine, [59] viz:
It is certain that not every conscience can be accommodated by all the laws of
the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest
intervenes.
Thus, Sherbert and subsequent cases held that when government action
burdens, even inadvertently, a sincerely held religious belief or practice, the
state must justify the burden by demonstrating that the law embodies a
compelling interest, that no less restrictive alternative exists, and that a
religious exemption would impair the states ability to effectuate its
compelling interest. As in other instances of state action affecting
fundamental rights, negative impacts on those rights demand the highest level
57

of judicial scrutiny. After Sherbert, this strict scrutiny balancing test resulted
in court-mandated religious exemptions from facially-neutral laws of general
application whenever unjustified burdens were found. [60]
Then, in the 1972 case of Wisconsin v. Yoder,[61] the U.S. Court again ruled
that religious exemption was in order, notwithstanding that the law of general
application had a criminal penalty. Using heightened scrutiny, the Court
overturned the conviction of Amish parents for violating Wisconsin
compulsory school-attendance laws. The Court, in effect, granted exemption
from a neutral, criminal statute that punished religiously motivated conduct.
Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State does not
deny the free exercise of religious belief by its requirement, or that there is a
state interest of sufficient magnitude to override the interest claiming
protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses
had specially and firmly fixed the right of free exercise of religious beliefs,
and buttressing this fundamental right was an equally firm, even if less
explicit, prohibition against the establishment of any religion. The values
underlying these two provisions relating to religion have been zealously
protected, sometimes even at the expense of other interests of admittedly high
social importance. . .
The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is
always outside the protection of the Free Exercise Clause. It is true that
activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to promote
the health, safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause of
the First Amendment and thus beyond the power of the State to control, even
under regulations of general applicability. . . .This case, therefore, does not
become easier because respondents were convicted for their actions in

refusing to send their children to the public high school; in this context belief
and action cannot be neatly confined in logic-tight compartments. . . [62]
The cases of Sherbert and Yoder laid out the following doctrines: (a) free
exercise clause claims were subject to heightened scrutiny or compelling
interest test if government substantially burdened the exercise of religion; (b)
heightened scrutiny or compelling interest test governed cases where the
burden was direct, i.e., the exercise of religion triggered a criminal or civil
penalty, as well as cases where the burden was indirect, i.e., the exercise of
religion resulted in the forfeiture of a government benefit;[63] and (c) the
Court could carve out accommodations or exemptions from a facially neutral
law of general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was
protectedconduct beyond speech, press, or worship was included in the
shelter of freedom of religion. Neither Sherberts refusal to work on the
Sabbath nor the Amish parents refusal to let their children attend ninth and
tenth grades can be classified as conduct protected by the other clauses of the
First Amendment. Second, indirect impositions on religious conduct, such as
the denial of twenty-six weeks of unemployment insurance benefits to Adel
Sherbert, as well as direct restraints, such as the criminal prohibition at issue
in Yoder, were prohibited. Third, as the language in the two cases indicate,
the protection granted was extensive. Only extremely strong governmental
interests justified impingement on religious conduct, as the absolute language
of the test of the Free Exercise Clause suggests. [64]
Fourth, the strong language was backed by a requirement that the government
provide proof of the important interest at stake and of the dangers to that
interest presented by the religious conduct at issue. Fifth, in determining the
injury to the governments interest, a court was required to focus on the effect
that exempting religious claimants from the regulation would have, rather
than on the value of the regulation in general. Thus, injury to governmental
interest had to be measured at the margin: assuming the law still applied to all
others, what would be the effect of exempting the religious claimant in this
case and other similarly situated religious claimants in the future? Together,
the fourth and fifth elements required that facts, rather than speculation, had
to be presented concerning how the governments interest would be harmed
by excepting religious conduct from the law being challenged. [65]

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence
which would impose a discipline to prevent manipulation in the balancing of
interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance,
by not allowing speculation about the effects of a decision adverse to those
interests nor accepting that those interests would be defined at a higher level
of generality than the constitutional interests on the other side of the balance.
[66]
Thus, the strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated conduct.
While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided
with religious practices. Although the members of the U.S. Court often
disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established a strong presumption in favor of
the free exercise of religion.[67] Most scholars and courts agreed that under
Sherbert and Yoder, the Free Exercise Clause provided individuals some
form of heightened scrutiny protection, if not always a compelling interest
one.[68] The 1990 case of Employment Division, Oregon Department of
Human Resources v. Smith,[69] drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law
prohibiting use of peyote, a hallucinogenic substance. Specifically,
individuals challenged the states determination that their religious use of
peyote, which resulted in their dismissal from employment, was misconduct
disqualifying them from receipt of unemployment compensation benefits.
[70]
Justice Scalia, writing for the majority, rejected the claim that free exercise of
religion required an exemption from an otherwise valid law. Scalia said that
[w]e have never held that an individuals religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is
free to regulate. On the contrary, the record of more than a century of our free
exercise jurisprudence contradicts that proposition. [71] Scalia thus declared
that the right of free exercise does not relieve an individual of the obligation
to comply with a valid and neutral law of general applicability of the ground
that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes). [72]
58

Justice Scalias opinion then reviewed the cases where free exercise
challenges had been upheldsuch as Cantwell, Murdock, Follet, Pierce, and
Yoderand said that none involved the free exercise clause claims alone. All
involved the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press, or the right of
parents to direct the education of their children. [73] The Court said that
Smith was distinguishable because it did not involve such a hybrid situation,
but was a free exercise claim unconnected with any communicative activity
or parental right. [74]
Moreover, the Court said that the Sherbert line of cases applied only in the
context of the denial of unemployment benefits; it did not create a basis for
an exemption from criminal laws. Scalia wrote that [e]ven if we were
inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a
generally applicable criminal law. [75]
The Court expressly rejected the use of strict scrutiny for challenges to
neutral laws of general applicability that burden religion. Justice Scalia said
that [p]recisely because we are a cosmopolitan nation made up of people of
almost conceivable religious preference, and precisely because we value and
protect that religious divergence, we cannot afford the luxury of deeming
presumptively invalid, as applied to the religious objector, every regulation of
conduct that does not protect an interest of the highest order. The Court said
that those seeking religious exemptions from laws should look to the
democratic process for protection, not the courts. [76]
Smith thus changed the test for the free exercise clause. Strict or heightened
scrutiny and the compelling justification approach were abandoned for
evaluating laws burdening religion; neutral laws of general applicability only
have to meet the rational basis test, no matter how much they burden religion.
[77]
Justice OConnor wrote a concurring opinion sharply criticizing the rejection
of the compelling state interest test, asserting that (t)he compelling state
interest test effectuates the First Amendments command that religious liberty
is an independent liberty, that it occupies a preferred position, and that the
Court will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling government interest of the
highest order.[78] She said that strict scrutiny is appropriate for free exercise
challenges because [t]he compelling interest test reflects the First

Amendments mandate of preserving religious liberty to the fullest extent

possible in a pluralistic society. [79]
Justice OConnor also disagreed with the majoritys description of prior cases
and especially its leaving the protection of minority religions to the political
process. She said that, First Amendment was enacted precisely to protect the
rights of those whose religious practice are not shared by the majority and
may be viewed with hostility. [80]
Justice Blackmun wrote a dissenting opinion that was joined by Justices
Brennan and Marshall. The dissenting Justices agreed with Justice OConnor
that the majority had mischaracterized precedents, such as in describing
Yoder as a hybrid case rather than as one under the free exercise clause. The
dissent also argued that strict scrutiny should be used in evaluating
government laws burdening religion. [81]
Criticism of Smith was intense and widespread.[82] Academics, Justices, and
a bipartisan majority of Congress noisily denounced the decision.[83] Smith
has the rather unusual distinction of being one case that is almost universally
despised (and this is not too strong a word) by both the liberals and
conservatives.[84] Liberals chasten the Court for its hostility to minority
faiths which, in light of Smiths general applicability rule, will allegedly suffer
at the hands of the majority faith whether through outright hostility or
neglect. Conservatives bemoan the decision as an assault on religious belief
leaving religion, more than ever, subject to the caprice of an ever more
secular nation that is increasingly hostile to religious belief as an oppressive
and archaic anachronism. [85]
The Smith doctrine is highly unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding of free exercise
jurisprudence.[86] First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority.
[87] Critics of Smith have worried about religious minorities, who can suffer
disproportionately from laws that enact majoritarian mores.[88] Smith, in
effect would allow discriminating in favor of mainstream religious groups
against smaller, more peripheral groups who lack legislative clout,[89]
contrary to the original theory of the First Amendment.[90] Undeniably,
claims for judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped out their
judicial recourse for exemption.[91] Second, Smith leaves too much leeway
for pervasive welfare-state regulation to burden religion while satisfying

neutrality. After all, laws not aimed at religion can hinder observance just as
effectively as those that target religion.[92] Government impairment of
religious liberty would most often be of the inadvertent kind as in Smith
considering the political culture where direct and deliberate regulatory
imposition of religious orthodoxy is nearly inconceivable. If the Free
Exercise Clause could not afford protection to inadvertent interference, it
would be left almost meaningless.[93] Third, the Reynolds-Gobitis-Smith[94]
doctrine simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an
individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative approaches for the
state to effectively pursue its objective without serious inadvertent impact on
religion.[95]
At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1)
the difficulty in defining and limiting the term religion in todays pluralistic
society, and (2) the belief that courts have no business determining the
significance of an individuals religious beliefs. For the Smith Court, these
two concerns appear to lead to the conclusion that the Free Exercise Clause
must protect everything or it must protect virtually nothing. As a result, the
Court perceives its only viable options are to leave free exercise protection to
the political process or to allow a system in which each conscience is a law
unto itself. [96] The Courts characterization of its choices have been soundly
rejected as false, viz:
If one accepts the Courts assumption that these are the only two viable
options, then admittedly, the Court has a stronger argument. But the Free
Exercise Clause cannot be summarily dismissed as too difficult to apply and
this should not be applied at all. The Constitution does not give the judiciary
the option of simply refusing to interpret its provisions. The First
Amendment dictates that free exercise of religion must be protected.
Accordingly, the Constitution compels the Court to struggle with the contours
of what constitutes religion. There is no constitutional opt-out provision for
constitutional words that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring
constitutional mandates. A large area of middle ground exists between the
Courts two opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court to tackle difficult issues
59

such as defining religion and possibly evaluating the significance of a

religious belief against the importance of a specific law. The Court describes
the results of this middle ground where federal judges will regularly balance
against the importance of general laws the significance of religious practice,
and then dismisses it as a parade of horribles that is too horrible to
contemplate.
It is not clear whom the Court feels would be most hurt by this parade of
horribles. Surely not religious individuals; they would undoubtedly prefer
their religious beliefs to be probed for sincerity and significance rather than
acquiesce to the Courts approach of simply refusing to grant any
constitutional significance to their beliefs at all. If the Court is concerned
about requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It is the
lawmakers who have sought to prevent the Court from dismantling the Free
Exercise Clause through such legislation as the [Religious Freedom
Restoration Act of 1993], and in any case, the Court should not be overly
concerned about hurting legislatures feelings by requiring their laws to
conform to constitutional dictates. Perhaps the Court is concerned about
putting such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional
interpreters is a burden no judge should be expected to fulfill.[97]
Parenthetically, Smiths characterization that the U.S. Court has never held
that an individuals religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the state is free to regulatean
assertion which Mr. Justice Carpio adopted unequivocally in his dissenthas
been sharply criticized even implicitly by its supporters, as blatantly untrue.
Scholars who supported Smith frequently did not do so by opposing the
arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith
decision made shocking use of precedent]those points were often conceded.
[98]
To justify its perversion of precedent, the Smith Court attempted to
distinguish the exemption made in Yoder, by asserting that these were
premised on two constitutional rights combinedthe right of parents to direct
the education of their children and the right of free exercise of religion.
Under the Courts opinion in Smith, the right of free exercise of religion

standing alone would not allow Amish parents to disregard the compulsory
school attendance law, and under the Courts opinion in Yoder, parents whose
objection to the law was not religious would also have to obey it. The fatal
flaw in this argument, however, is that if two constitutional claims will fail on
its own, how would it prevail if combined?[99] As for Sherbert, the Smith
Court attempted to limit its doctrine as applicable only to denials of
unemployment compensation benefits where the religiously-compelled
conduct that leads to job loss is not a violation of criminal law. And yet, this
is precisely why the rejection of Sherbert was so damaging in its effect: the
religious person was more likely to be entitled to constitutional protection
when forced to choose between religious conscience and going to jail than
when forced to choose between religious conscience and financial loss. [100]
Thus, the Smith decision elicited much negative public reaction especially
from the religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.[101] So much was the uproar
that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993.[102] The RFRA was adopted to negate the
Smith test and require strict scrutiny for free exercise claims. Indeed, the
findings section of the Act notes that Smith virtually eliminated the
requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion.[103] The Act declares that its
purpose is to restore the compelling interest test as set forth in Sherbert v.
Verner and Wisconsin v. Yoder, and to guarantee its application in all cases
where free exercise of religion is substantially burdened; and to provide a
claim of defense to a person whose religious exercise is substantially
burdened by government.[104] The RFRA thus sought to overrule Smith and
make strict scrutiny the test for all free exercise clause claims. [105]
In the City of Boerne v. Flores, [106] the U.S. Supreme Court declared the
RFRA unconstitutional, ruling that Congress had exceeded its power under
the Fourteenth Amendment in enacting the law. The Court ruled that
Congress is empowered to enact laws to enforce the amendment, but
Congress is not enforcing when it creates new constitutional rights or
expands the scope of rights. [107]
City of Boerne also drew public backlash as the U.S. Supreme Court was
accused of lack of judicial respect for the constitutional decision-making by a
coordinate branch of government. In Smith, Justice Scalia wrote:

Values that are protected against governmental interference through

enshrinement in the Bill of Rights are not thereby banished from the political
process. Just as society believes in the negative protection accorded to the
press by the First Amendment is likely to enact laws that affirmatively foster
the dissemination of the printed word, so also a society that believes in the
negative protection accorded to religious belief can be expected to be
solicitous of that value in its legislation as well.
By invalidating RFRA, the Court showed a marked disrespect of the
solicitude of a nearly unanimous Congress. Contrary to the Courts
characterization of the RFRA as a kind of usurpation of the judicial power to
say what the Constitution means, the law offered no definition of Free
Exercise, and on its face appeared to be a procedural measure establishing a
standard of proof and allocating the duty of meeting it. In effect, the Court
ruled that Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress. The power
of Congress to act towards the states in matters of religion arises from the
Fourteenth Amendment. [108]
From the foregoing, it can be seen that Smith, while expressly recognizing
the power of legislature to give accommodations, is in effect contrary to the
benevolent neutrality or accommodation approach. Moreover, if we consider
the history of the incorporation of the religion clauses in the U.S., the
decision in Smith is grossly inconsistent with the importance placed by the
framers on religious faith. Smith is dangerous precedent because it
subordinates fundamental rights of religious belief and practice to all neutral,
general legislation. Sherbert recognized the need to protect religious exercise
in light of the massive increase in the size of government, the concerns within
its reach, and the number of laws administered by it. However, Smith
abandons the protection of religious exercise at a time when the scope and
reach of government has never been greater. It has been pointed out that
Smith creates the legal framework for persecution: through general, neutral
laws, legislatures are now able to force conformity on religious minorities
whose practice irritate or frighten an intolerant majority.[109]
The effect of Smith is to erase entirely the concept of mandatory
accommodations, thereby emasculating the Free Exercise Clause. Smith left
religious freedom for many in the hands of the political process, exactly
where it would be if the religion clauses did not exist in the Bill of Rights.
60

Like most protections found in the Bill of Rights, the religion clauses of the
First Amendment are most important to those who cannot prevail in the
political process. The Court in Smith ignores the fact that the protections
found in the Bill of Rights were deemed too important to leave to the political
process. Because mainstream religions generally have been successful in
protecting their interests through the political process, it is the nonmainstream religions that are adversely affected by Smith. In short, the U.S.
Supreme Court has made it clear to such religions that they should not look to
the First Amendment for religious freedom. [110]
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those
which are found to be constitutionally compelled, i.e., required by the Free
Exercise Clause; (b) those which are discretionary or legislative, i.e., not
required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause; and (c) those which the religion clauses prohibit.[111]
Mandatory accommodation results when the Court finds that accommodation
is required by the Free Exercise Clause, i.e, when the Court itself carves out
an exemption. This accommodation occurs when all three conditions of the
compelling interest test are met, i.e, a statute or government action has
burdened claimants free exercise of religion, and there is no doubt as to the
sincerity of the religious belief; the state has failed to demonstrate a
particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least
restrictive means. In these cases, the Court finds that the injury to religious
conscience is so great and the advancement of public purposes is
incomparable that only indifference or hostility could explain a refusal to
make exemptions. Thus, if the states objective could be served as well or
almost as well by granting an exemption to those whose religious beliefs are
burdened by the regulation, the Court must grant the exemption. The Yoder
case is an example where the Court held that the state must accommodate the
religious beliefs of the Amish who objected to enrolling their children in high
school as required by law. The Sherbert case is another example where the
Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.[112]
In permissive accommodation, the Court finds that the State may, but is not
required to, accommodate religious interests. The U.S. Walz case illustrates
this situation where the U.S. Supreme Court upheld the constitutionality of

tax exemption given by New York to church properties, but did not rule that
the state was required to provide tax exemptions. The Court declared that
(t)he limits of permissible state accommodation to religion are by no means
co-extensive with the noninterference mandated by the Free Exercise
Clause.[113] Other examples are Zorach v. Clauson,[114] allowing released
time in public schools and Marsh v. Chambers,[115] allowing payment of
legislative chaplains from public funds. Parenthetically, the Court in Smith
has ruled that this is the only accommodation allowed by the Religion
Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it
determines that the legislative accommodation runs afoul of the establishment
or the free exercise clause, it results to a prohibited accommodation. In this
case, the Court finds that establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed
by the Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.[116] An example where accommodation was
prohibited is McCollum v. Board of Education,[117] where the Court ruled
against optional religious instruction in the public school premises.[118]
Given that a free exercise claim could lead to three different results, the
question now remains as to how the Court should determine which action to
take. In this regard, it is the strict scrutiny-compelling state interest test which
is most in line with the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First
Amendment is that freedom to carry out ones duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Religious
freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and
not hostility, benevolent neutrality allows accommodation of religion under
certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable
religious belief or practice, free exercise disputes arise commonly when a law
that is religiously neutral and generally applicable on its face is argued to
prevent or burden what someones religious faith requires, or alternatively,
requires someone to undertake an act that faith would preclude. In essence,
then, free exercise arguments contemplate religious exemptions from
otherwise general laws.[119]

Strict scrutiny is appropriate for free exercise challenges because [t]he

compelling interest test reflects the First Amendments mandate of preserving
religious liberty to the fullest extent possible in a pluralistic society.[120]
Underlying the compelling state interest test is the notion that free exercise is
a fundamental right and that laws burdening it should be subject to strict
scrutiny.[121]
In its application, the compelling state interest test follows a three-step
process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or compelling) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this burden
and the government does not, the plaintiff is entitled to exemption from the
law or practice at issue. In order to be protected, the claimants beliefs must be
sincere, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimants religious denomination.
Only beliefs rooted in religion are protected by the Free Exercise Clause;
secular beliefs, however sincere and conscientious, do not suffice.[122]
In sum, the U.S. Court has invariably decided claims based on the religion
clauses using either the separationist approach, or the benevolent neutrality
approach. The benevolent neutrality approach has also further been split by
the view that the First Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The current prevailing view
as pronounced in Smith, however, is that that there are no required
accommodation under the First Amendment, although it permits of legislative
accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence
and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of
the Philippines, it is immediately clear that one cannot simply conclude that
we have adoptedlock, stock and barrelthe religion clauses as embodied in the
First Amendment, and therefore, the U.S. Courts interpretation of the same.
Unlike in the U.S. where legislative exemptions of religion had to be upheld
by the U.S. Supreme Court as constituting permissive accommodations,
61

similar exemptions for religion are mandatory accommodations under our

own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain
provisions on tax exemption of church property,[123] salary of religious
officers in government institutions,[124] and optional religious
instruction.[125] Our own preamble also invokes the aid of a divine
being.[126] These constitutional provisions are wholly ours and have no
counterpart in the U.S. Constitution or its amendments. They all reveal
without doubt that the Filipino people, in adopting these constitutions,
manifested their adherence to the benevolent neutrality approach that requires
accommodations in interpreting the religion clauses.[127]
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was
erroneous insofar as it asserted that the 1935 Constitution incorporates the
Walz ruling as this case was decided subsequent to the 1935 Constitution is a
misreading of the ponencia. What the ponencia pointed out was that even as
early as 1935, or more than three decades before the U.S. Court could
validate the exemption in Walz as a form or permissible accommodation, we
have already incorporated the same in our Constitution, as a mandatory
accommodation.
There is no ambiguity with regard to the Philippine Constitutions departure
from the U.S. Constitution, insofar as religious accommodations are
concerned. It is indubitable that benevolent neutrality-accommodation,
whether mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution.[128] As stated in our Decision, dated
August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution xxxx Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One
might simply conclude that the Philippine Constitutions and jurisprudence
also inherited the disarray of U.S. religion clause jurisprudence and the two
identifiable streams; thus, when a religion clause case comes before the
Court, a separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it. Or, one might
conclude that as the history of the First Amendment as narrated by the Court
in Everson supports the separationist approach, Philippine jurisprudence

should also follow this approach in light of the Philippine religion clauses
history. As a result, in a case where the party claims religious liberty in the
face of a general law that inadvertently burdens his religious exercise, he
faces an almost insurmountable wall in convincing the Court that the wall of
separation would not be breached if the Court grants him an exemption.
These conclusions, however, are not and were never warranted by the 1987,
1973 and 1935 Constitutions as shown by other provisions on religion in all
three constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to
all of them full force and effect. From this construction, it will be ascertained
that the intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution.[129]
[citations omitted]
We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts
interpretation of the religion clauses to effectively deny accommodations on
the sole basis that the law in question is neutral and of general application.
For even if it were true that an unbroken line of U.S. Supreme Court
decisions has never held that an individuals religious beliefs [do not] excuse
him from compliance with an otherwise valid law prohibiting conduct that
the State is free to regulate, our own Constitutions have made significant
changes to accommodate and exempt religion. Philippine jurisprudence
shows that the Court has allowed exemptions from a law of general
application, in effect, interpreting our religion clauses to cover both
mandatory and permissive accommodations.[130]
To illustrate, in American Bible Society v. City of Manila,[131] the Court
granted to plaintiff exemption from a law of general application based on the
Free Exercise Clause. In this case, plaintiff was required by an ordinance to
secure a mayors permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the citys
ordinances. Plaintiff argued that this amounted to religious censorship and
restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of
the Philippines. Although the Court categorically held that the questioned
ordinances were not applicable to plaintiff as it was not engaged in the

business or occupation of selling said merchandise for profit, it also ruled that
applying the ordinance to plaintiff and requiring it to secure a license and pay
a license fee or tax would impair its free exercise of religious profession and
worship and its right of dissemination of religious beliefs as the power to tax
the exercise of a privilege is the power to control or suppress its enjoyment.
The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other
restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to
prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The
Division Superintendent of Schools.[132] The case involved several Jehovahs
Witnesses who were expelled from school for refusing to salute the flag, sing
the national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the religious freedom issue, a
unanimous Court overturned an earlier ruling denying such exemption,[133]
using the grave and imminent danger test, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified.[134] (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of
general application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The
case of Victoriano v. Elizalde Rope Workers Union[135] is an example of the
application of Mr. Justice Carpios theory of permissive accommodation,
where religious exemption is granted by a legislative act. In Victoriano, the
constitutionality of Republic Act No. 3350 was questioned. The said R.A.
exempt employees from the application and coverage of a closed shop
62

agreementmandated in another lawbased on religious objections. A

unanimous Court upheld the constitutionality of the law, holding that
government is not precluded from pursuing valid objectives secular in
character even if the incidental result would be favorable to a religion or sect.
Interestingly, the secular purpose of the challenged law which the Court
upheld was the advancement of the constitutional right to the free exercise of
religion.[136]
Having established that benevolent neutrality-accommodation is the
framework by which free exercise cases must be decided, the next question
then turned to the test that should be used in ascertaining the limits of the
exercise of religious freedom. In our Decision dated August 4, 2003, we
reviewed our jurisprudence, and ruled that in cases involving purely conduct
based on religious belief, as in the case at bar, the compelling state interest
test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the clear and present danger test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the immediate
and grave danger test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the compelling state interest test. After Victoriano, German
went back to the Gerona rule. Ebralinag then employed the grave and
immediate danger test and overruled the Gerona test. The fairly recent case of
Iglesia ni Cristo went back to the clear and present danger test in the maiden
case of American Bible Society. Not surprisingly, all the cases which
employed the clear and present danger or grave and immediate danger test
involved, in one form or another, religious speech as this test is often used in
cases on freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the grave
and immediate danger test. Victoriano was the only case that employed the

compelling state interest test, but as explained previously, the use of the test
was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the clear and present danger and grave
and immediate danger tests were appropriate as speech has easily discernible
or immediate effects. The Gerona and German doctrine, aside from having
been overruled, is not congruent with the benevolent neutrality approach,
thus not appropriate in this jurisdiction. Similar to Victoriano, the present
case involves purely conduct arising from religious belief. The compelling
state interest test is proper where conduct is involved for the whole gamut of
human conduct has different effects on the states interests: some effects may
be immediate and short-term while others delayed and far-reaching. A test
that would protect the interests of the state in preventing a substantive evil,
whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - the most inalienable and sacred of all human rights, in
the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional
order of limited government is premised upon an acknowledgment of such
higher sovereignty, thus the Filipinos implore the aid of Almighty God in
order to build a just and humane society and establish a government. As held
in Sherbert, only the gravest abuses, endangering paramount interests can
limit this fundamental right. A mere balancing of interests which balances a
right with just a colorable state interest is therefore not appropriate. Instead,
only a compelling interest of the state can prevail over the fundamental right
to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. In determining
which shall prevail between the states interest and religious liberty,
reasonableness shall be the guide. The compelling state interest serves the
purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used in
Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the compelling state interest test, by upholding the paramount interests
of the state, seeks to protect the very state, without which, religious liberty
will not be preserved. [137] (citations omitted)

At this point, we take note of Mr. Justice Carpios dissent, which, while
loosely disputing the applicability of the benevolent neutrality framework and
compelling state interest test, states that [i]t is true that a test needs to be
applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor. This assertion is inconsistent with the
position negating the benevolent neutrality or accommodation approach. If it
were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test
to determine the validity of a free exercise claim, as any and all claims for
religious exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that [m]aking a distinction between permissive
accommodation and mandatory accommodation is more critically important
in analyzing free exercise exemption claims because it forces the Court to
confront how far it can validly set the limits of religious liberty under the
Free Exercise Clause, rather than presenting the separation theory and
accommodation theory as opposite concepts, and then rejecting relevant and
instructive American jurisprudence (such as the Smith case) just because it
does not espouse the theory selected. He then asserts that the Smith doctrine
cannot be dismissed because it does not really espouse the strict neutrality
approach, but more of permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the doctrine
in Smith is that only legislative accommodations are allowed under the Free
Exercise Clause, it cannot be used in determining a claim of religion
exemption directly anchored on the Free Exercise Clause. Thus, even
assuming that the Smith doctrine actually espouses the theory of
accommodation or benevolent neutrality, the accommodation is limited to the
permissive, or legislative exemptions. It, therefore, cannot be used as a test in
determining the claims of religious exemptions directly under the Free
Exercise Clause because Smith does not recognize such exemption.
Moreover, Mr. Justice Carpios advocacy of the Smith doctrine would
effectively render the Free Exercise protectiona fundamental right under our
Constitutionnugatory because he would deny its status as an independent
source of right.
b. The Compelling State Interest Test

63

As previously stated, the compelling state interest test involves a three-step

process. We explained this process in detail, by showing the questions which
must be answered in each step, viz:
First, [H]as the statute or government action created a burden on the free
exercise of religion? The courts often look into the sincerity of the religious
belief, but without inquiring into the truth of the belief because the Free
Exercise Clause prohibits inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimants belief is ascertained to avoid the
mere claim of religious beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: [I]s there a sufficiently compelling state interest to
justify this infringement of religious liberty? In this step, the government has
to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: [H]as the state in achieving its legitimate purposes used
the least intrusive means possible so that the free exercise is not infringed any
more than necessary to achieve the legitimate goal of the state? The analysis
requires the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it has chosen a way
to achieve its legitimate state end that imposes as little as possible on
religious liberties xxx.[138] [citations omitted]
Again, the application of the compelling state interest test could result to
three situations of accommodation: First, mandatory accommodation would
result if the Court finds that accommodation is required by the Free Exercise
Clause. Second, if the Court finds that the State may, but is not required to,
accommodate religious interests, permissive accommodation results. Finally,
if the Court finds that that establishment concerns prevail over potential
accommodation interests, then it must rule that the accommodation is
prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that only
permissive accommodation can carve out an exemption from a law of general
application. He posits the view that the law should prevail in the absence of a

legislative exemption, and the Court cannot make the accommodation or

exemption.
Mr. Justice Carpios position is clearly not supported by Philippine
jurisprudence. The cases of American Bible Society, Ebralinag, and
Victoriano demonstrate that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant of permissive, or
legislative accommodations, but also mandatory accommodations. Thus, an
exemption from a law of general application is possible, even if anchored
directly on an invocation of the Free Exercise Clause alone, rather than a
legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet
wherein the Court granted an accommodation/exemption to a religious act
from the application of general penal laws, permissive accommodation based
on religious freedom has been granted with respect to one of the crimes
penalized under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,[139] the U.S. Court expressly
denied to Mormons an exemption from a general federal law criminalizing
polygamy, even if it was proven that the practice constituted a religious duty
under their faith.[140] In contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative act. For while the act of
marrying more than one still constitutes bigamy under the Revised Penal
Code, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the
crime of bigamy shall not apply to a person marriedunder Muslim law. Thus,
by legislative action, accommodation is granted of a Muslim practice which
would otherwise violate a valid and general criminal law. Mr. Justice Carpio
recognized this accommodation when, in his dissent in our Decision dated
August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v.
Malik,[141] he stated that a Muslim Judge is not criminally liable for bigamy
because Sharia law allows a Muslim to have more than one wife.
From the foregoing, the weakness of Mr. Justice Carpios permissiveaccommodation only advocacy in this jurisdiction becomes manifest. Having
anchored his argument on the Smith doctrine that the guaranty of religious
liberty as embodied in the Free Exercise Clause does not require the grant of
exemptions from generally applicable laws to individuals whose religious
practice conflict with those laws, his theory is infirmed by the showing that
the benevolent neutrality approach which allows for both mandatory and

permissive accommodations was unequivocally adopted by our framers in the

Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a permissive accommodationonly stance is the antithesis to the notion that religion clauses, like the other
fundamental liberties found in the Bill or Rights, is a preferred right and an
independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the
test in Sherbert is not applicable when the law in question is a generally
applicable criminal law. Stated differently, even if Mr. Justice Carpio
conceded that there is no question that in the Philippine context,
accommodations are made, the question remains as to how far the
exemptions will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal
statutes, only the question of mandatory accommodation is uncertain, for
Philippine law and jurisprudence have, in fact, allowed legislative
accommodation. Second, the power of the Courts to grant exemptions in
general (i.e., finding that the Free Exercise Clause required the
accommodation, or mandatory accommodations) has already been decided,
not just once, but twice by the Court. Thus, the crux of the matter is whether
this Court can make exemptions as in Ebralinag and the American Bible
Society, in cases involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the
following reasons.
First, as previously discussed, while the U.S. religion clauses are the
precursors to the Philippine religion clauses, the benevolent neutralityaccommodation approach in Philippine jurisdiction is more pronounced and
given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the
notion of mandatory accommodations, was to address the inadvertent
burdensome effect that an otherwise facially neutral law would have on
religious exercise. Just because the law is criminal in nature, therefore,
should not bring it out of the ambit of the Free Exercise Clause. As stated by
Justice OConnor in her concurring opinion in Smith, [t]here is nothing
talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate
his religious conscience or intrude upon his religious duties just as effectively
as laws aimed at religion.[142]
64

Third, there is wisdom in accommodation made by the Court as this is the

recourse of minority religions who are likewise protected by the Free
Exercise Clause. Mandatory accommodations are particularly necessary to
protect adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt hostility
to the minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions
of the majority, thus not infrequently, they come into conflict with the
religious scruples of those holding different world views, even in the absence
of a deliberate intent to interfere with religious practice. At times, this effect
is unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances, the
injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions, legislators
and executive officials are frequently willing to make such exemptions when
the need is brought to their attention, but this may not always be the case
when the religious practice is either unknown at the time of enactment or is
for some reason unpopular. In these cases, a constitutional interpretation that
allows accommodations prevents needless injury to the religious consciences
of those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to
religious faiths that are less able to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an
alien concept, nor will it be applied for the first time, as an exemption of such
nature, albeit by legislative act, has already been granted to Moslem
polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the
other fundamental rights in the Bill of Rights. It has been noted that unlike
other fundamental rights like the right to life, liberty or property, the Religion
Clauses are stated in absolute terms, unqualified by the requirement of due
process, unreasonableness, or lawful order. Only the right to free speech is
comparable in its absolute grant. Given the unequivocal and unqualified grant
couched in the language, the Court cannot simply dismiss a claim of
exemption based on the Free Exercise Clause, solely on the premise that the
law in question is a general criminal law. [143] If the burden is great and the

sincerity of the religious belief is not in question, adherence to the benevolent

neutrality-accommodation approach require that the Court make an
individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent
neutrality-accommodation approach does not mean that the Court ought to
grant exemptions every time a free exercise claim comes before it. This is an
erroneous reading of the framework which the dissent of Mr. Justice Carpio
seems to entertain. Although benevolent neutrality is the lens with which the
Court ought to view religion clause cases, the interest of the state should also
be afforded utmost protection. This is precisely the purpose of the testto draw
the line between mandatory, permissible and forbidden religious exercise.
Thus, under the framework, the Court cannot simply dismiss a claim under
the Free Exercise Clause because the conduct in question offends a law or the
orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the
protection afforded by the religion clauses of the Constitution.[144] As stated
in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate
the difficult questions of judgment in determining the degree of burden on
religious practice or importance of the state interest or the sufficiency of the
means adopted by the state to pursue its interest, the Court can set a doctrine
on the ideal towards which religious clause jurisprudence should be directed.
We here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching
pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection of
religious liberty not only for a minority, however small- not only for a
majority, however large but for each of us to the greatest extent possible
within flexible constitutional limits.[145]
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As
mentioned, what remained to be resolved, upon which remand was necessary,
pertained to the final task of subjecting this case to the careful application of
the compelling state interest test, i.e., determining whether respondent is

entitled to exemption, an issue which is essentially factual or evidentiary in

nature.
After the termination of further proceedings with the OCA, and with the
transmittal of the Hearing Officers report,[146] along with the evidence
submitted by the OSG, this case is once again with us, to resolve the
penultimate question of whether respondent should be found guilty of the
administrative charge of disgraceful and immoral conduct. It is at this point
then that we examine the report and documents submitted by the hearing
officer of this case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties, especially the
government.
On the sincerity of religious belief, the Solicitor General categorically
concedes that the sincerity and centrality of respondents claimed religious
belief and practice are beyond serious doubt.[147] Thus, having previously
established the preliminary conditions required by the compelling state
interest test, i.e., that a law or government practice inhibits the free exercise
of respondents religious beliefs, and there being no doubt as to the sincerity
and centrality of her faith to claim the exemption based on the free exercise
clause, the burden shifted to the government to demonstrate that the law or
practice justifies a compelling secular objective and that it is the least
restrictive means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate the
gravest abuses, endangering paramount interests which could limit or
override respondents fundamental right to religious freedom. Neither did the
government exert any effort to show that the means it seeks to achieve its
legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. EXHIBIT A-OSG AND SUBMARKING The September 30, 2003 Letter
to the OSG of Bro. Raymond B. Leach, Legal Representative of the Watch
Tower Bible and Tract Society of the Philippines, Inc.
PURPOSE: To show that the OSG exerted efforts to examine the sincerity
and centrality of respondents claimed religious belief and practice.
2. EXHIBIT B-OSG AND SUBMARKING The duly notarized certification
dated September 30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondents
claimed religious belief and practice; and (2) to prove that the Declaration of
Pledging Faithfulness, being a purely internal arrangement within the
65

congregation of the Jehovahs Witnesses, cannot be a source of any legal

protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a
compelling interest to override respondents claimed religious belief and
practice, in order to protect marriage and the family as basic social
institutions. The Solicitor General, quoting the Constitution[148] and the
Family Code,[149] argues that marriage and the family are so crucial to the
stability and peace of the nation that the conjugal arrangement embraced in
the Declaration of Pledging Faithfulness should not be recognized or given
effect, as it is utterly destructive of the avowed institutions of marriage and
the family for it reduces to a mockery these legally exalted and socially
significant institutions which in their purity demand respect and dignity.[150]
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the
Solicitor General in so far as he asserts that the State has a compelling
interest in the preservation of marriage and the family as basic social
institutions, which is ultimately the public policy underlying the criminal
sanctions against concubinage and bigamy. He also argues that in dismissing
the administrative complaint against respondent, the majority opinion
effectively condones and accords a semblance of legitimacy to her patently
unlawful cohabitation... and facilitates the circumvention of the Revised
Penal Code. According to Mr. Justice Carpio, by choosing to turn a blind eye
to respondents criminal conduct, the majority is in fact recognizing a practice,
custom or agreement that subverts marriage. He argues in a similar fashion as
regards the states interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting
the institutions of marriage and the family, or even in the sound
administration of justice. Indeed, the provisions by which respondents
relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code, Articles 334 and 349 of the
Revised Penal Code, and even the provisions on marriage and family in the
Civil Code and Family Code, all clearly demonstrate the States need to
protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as
one of the fundamental rights in our Constitution. It is a fundamental right
that enjoys a preferred position in the hierarchy of rights the most inalienable
and sacred of human rights, in the words of Jefferson. Hence, it is not enough

to contend that the states interest is important, because our Constitution itself
holds the right to religious freedom sacred. The State must articulate in
specific terms the state interest involved in preventing the exemption, which
must be compelling, for only the gravest abuses, endangering paramount
interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a source of
right by itself.
Thus, it is not the States broad interest in protecting the institutions of
marriage and the family, or even in the sound administration of justice that
must be weighed against respondents claim, but the States narrow interest in
refusing to make an exception for the cohabitation which respondents faith
finds moral. In other words, the government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are
granted.[151] This, the Solicitor General failed to do.
To paraphrase Justice Blackmuns application of the compelling interest test,
the States interest in enforcing its prohibition, in order to be sufficiently
compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does
not, in fact, attempt to enforce that prohibition. In the case at bar, the State
has not evinced any concrete interest in enforcing the concubinage or bigamy
charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The States asserted interest thus
amounts only to the symbolic preservation of an unenforced prohibition.
Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in
their concurring opinions in our Decision, dated August 4, 2003, to deny the
exemption would effectively break up an otherwise ideal union of two
individuals who have managed to stay together as husband and wife
[approximately twenty-five years] and have the effect of defeating the very
substance of marriage and the family.
The Solicitor General also argued against respondents religious freedom on
the basis of morality, i.e., that the conjugal arrangement of respondent and
her live-in partner should not be condoned because adulterous relationships
are constantly frowned upon by society;[152] and that State laws on
marriage, which are moral in nature, take clear precedence over the religious

beliefs and practices of any church, religious sect or denomination on

marriage. Verily, religious beliefs and practices should not be permitted to
override laws relating to public policy such as those of marriage.[153]
The above arguments are mere reiterations of the arguments raised by Mme.
Justice Ynares-Santiago in her dissenting opinion to our Decision dated
August 4, 2003, which she offers again in toto. These arguments have already
been addressed in our decision dated August 4, 2003.[154] In said Decision,
we noted that Mme. Justice Ynares-Santiagos dissenting opinion dwelt more
on the standards of morality, without categorically holding that religious
freedom is not in issue.[155] We, therefore, went into a discussion on
morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions.[156] Thus, when the law speaks
of immorality in the Civil Service Law or immoral in the Code of
Professional Responsibility for lawyers,[157] or public morals in the Revised
Penal Code,[158] or morals in the New Civil Code,[159] or moral character
in the Constitution,[160] the distinction between public and secular morality
on the one hand, and religious morality, on the other, should be kept in
mind;[161]
(b) Although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests;[162]
(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority.[163]
(d) Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase disgraceful and immoral
conduct for which a government employee may be held administratively
liable.[164] Only one conduct is in question before this Court, i.e., the
conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both
immoral and illegal.[165]
(e) While there is no dispute that under settled jurisprudence, respondents
conduct constitutes disgraceful and immoral conduct, the case at bar involves
66

the defense of religious freedom, therefore none of the cases cited by Mme.
Justice Ynares-Santiago apply.[166] There is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the
Jehovahs Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We cannot
summarily conclude therefore
that her conduct is likewise so odious and barbaric as to be immoral and
punishable by law.[167]

from governmental imposition; and imposes a unique disadvantage,

preventing the government from supporting it. To understand this as a
provision which puts religion on an equal footing with other bases for action
seems to be a curious reading. There are no free exercise of establishment
provisions for science, sports, philosophy, or family relations. The language
itself thus seems to answer whether we have a paradigm of equality or
liberty; the language of the Clause is clearly in the form of a grant of liberty.
[169]

liberties.[174] Again, the Solicitor General utterly failed to prove this

element of the test. Other than the two documents offered as cited above
which established the sincerity of respondents religious belief and the fact
that the agreement was an internal arrangement within respondents
congregation, no iota of evidence was offered. In fact, the records are bereft
of even a feeble attempt to procure any such evidence to show that the means
the state adopted in pursuing this compelling interest is the least restrictive to
respondents religious freedom.

Again, we note the arguments raised by Mr. Justice Carpio with respect to
charging respondent with conduct prejudicial to the best interest of the
service, and we reiterate that the dissent offends due process as respondent
was not given an opportunity to defend herself against the charge of conduct
prejudicial to the best interest of the service. Indeed, there is no evidence of
the alleged prejudice to the best interest of the service.[168]

In this case, the governments conduct may appear innocent and

nondiscriminatory but in effect, it is oppressive to the minority. In the
interpretation of a document, such as the Bill of Rights, designed to protect
the minority from the majority, the question of which perspective is
appropriate would seem easy to answer. Moreover, the text, history, structure
and values implicated in the interpretation of the clauses, all point toward this
perspective. Thus, substantive equalitya reading of the religion clauses which
leaves both politically dominant and the politically weak religious groups
equal in their inability to use the government (law) to assist their own religion
or burden othersmakes the most sense in the interpretation of the Bill of
Rights, a document designed to protect minorities and individuals from
mobocracy in a democracy (the majority or a coalition of minorities). [170]

Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritors conjugal arrangement cannot be
penalized as she has made out a case for exemption from the law based on
her fundamental right to freedom of religion. The Court recognizes that state
interests must be upheld in order that freedoms - including religious freedom
- may be enjoyed. In the area of religious exercise as a preferred freedom,
however, man stands accountable to an authority higher than the state, and so
the state interest sought to be upheld must be so compelling that its violation
will erode the very fabric of the state that will also protect the freedom. In the
absence of a showing that such state interest exists, man must be allowed to
subscribe to the Infinite.

Mr. Justice Carpios slippery slope argument, on the other hand, is nonsequitur. If the Court grants respondent exemption from the laws which
respondent Escritor has been charged to have violated, the exemption would
not apply to Catholics who have secured church annulment of their marriage
even without a final annulment from a civil court. First, unlike Jehovahs
Witnesses, the Catholic faith considers cohabitation without marriage as
immoral. Second, but more important, the Jehovahs Witnesses have standards
and procedures which must be followed before cohabitation without marriage
is given the blessing of the congregation. This includes an investigative
process whereby the elders of the congregation verify the circumstances of
the declarants. Also, the Declaration is not a blanket authority to cohabit
without marriage because once all legal impediments for the couple are lifted,
the validity of the Declaration ceases, and the congregation requires that the
couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.
Nevertheless, insofar as he raises the issue of equality among religions, we
look to the words of the Religion Clauses, which clearly single out religion
for both a benefit and a burden: No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof On its face,
the language grants a unique advantage to religious conduct, protecting it

IN VIEW WHEREOF, the instant administrative complaint is DISMISSED.

As previously discussed, our Constitution adheres to the benevolent
neutrality approach that gives room for accommodation of religious exercises
as required by the Free Exercise Clause.[171] Thus, in arguing that
respondent should be held administratively liable as the arrangement she had
was illegal per se because, by universally recognized standards, it is
inherently or by its very nature bad, improper, immoral and contrary to good
conscience,[172] the Solicitor General failed to appreciate that benevolent
neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.[173]

SO ORDERED.

Finally, even assuming that the OSG has proved a compelling state interest, it
has to further demonstrate that the state has used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious
67

Alejandro Estrada vs. Soledad Escritor A.M. No. P-02-1651 June 22, 2006
BILL OF RIGHTS
Alejandro Estrada vs. Soledad EscritorA.M. No. P-02-1651June 22, 2006

Court Administrator (OCA) and ordered the Office of the Solicitor General
(OSG) to intervene in the case.
ISSUE:

FACTS:
An administrative complaint was filed by Estrada against Escritor
before Branch 253 of the RTC of Las Pinas City for living with a man not her
husband and having borne a child within this live-in arrangement. Escritor is
the court interpreter of RTC Branch 253. Estrada believes that Escritor is
committing an immoral act that tarnishes the image of the court, thus she
should not be allowed to remain employed therein as it might appear that the
court condones her act. She was charged with committing disgraceful and
immoral conduct under Book V, Title I, Section 46 (b) (5) of the Revised
Administrative Code.
Escritor was already a widow when she entered the judiciary in 1999.
She started living with Luciano Quilapio, Jr. without the benefit of marriage
more than twenty years ago when her husband was still alive but living with
another woman. They have a son. After ten years of living together, she
executed on July 28, 1991 a Declaration of Pledging Faithfulness in
conformity with their religious beliefs and has the approval of her
congregation, the Jehovahs Witnesses and the Watch Tower and Bible Tract
Society.
Once all legal impediments for the couple are lifted, the validity of the
declarations ceases and the couple should legalize their union. Insofar as the
congregation is concerned, there is nothing immoral about the conjugal
arrangement and they remain members in good standing in the congregation.

Whether or not Escritors religious belief and practice should warrant

her claim of religious freedom under Article III, Section 5 of the
Constitution.
HELD:
The administrative complaint was dismissed. The OSG categorically
concedes that the sincerity and centrality of Escritors claimed religious
belief and practice are beyond serious doubt. Her request to be exempt from
attending the flag ceremony on the ground of the Jehovahs Witnesses
contrary belief and practice was duly noted. The OSG failed to demonstrate
the gravest abuses, endangering paramount interests which could limit or
override Escritors fundamental right to religious freedom.

In this particular case and under these distinct circumstances,

Escritors conjugal arrangement cannot be penalized as she has made out a
case for exemption from the law based on her fundamental right to freedom
of religion. Man stands accountable to an authority higher than the state.

Escritor appears to be sincere in her religious belief and practice and

is not merely using the Declaration of Pledging Faithfulness to avoid
punishment for immorality. Ministers from her congregation testified on the
authenticity of this practice and that this is to make the union of their
members under such circumstances honorable before God and men.
The court could not rule on the issue of whether or not Escritor was to
be held administratively liable so the case was remanded to the Office of the
68