Republic of the Philippines The complainant denied that she and Laurentino were paid
SUPREME COURT the P200,000.00 purchase price or that they would sell the
Manila
SECOND DIVISION
Adm. Case No. 6475 January 30, 2013
FE A. YLAYA, Complainant,
vs.
ATTY. GLENN CARLOS GACOTT, Respondent.
DECISION
BRION, J.:
For the Court's consideration is the disbarment
complaint1 tiled by Fe A. Ylaya (complainant) against Atty.
Glenn Carlos Gacott (respondent) who allegedly deceived the
complainant and her late husband, Laurentino L. Ylaya, into
signing a "preparatory" Deed of Sale that the respondent
converted into a Deed of Absolute Sale in favor of his
relatives.
After the submission of the respondent's comment to the
complaint, the Court referred the complaint to the Commission
on Bar Discipline ofthe Integrated Bar of the Philippines (IBP)
for investigation, evaluation and recommendation.
The complainant alleged that she and her late husband are the
registered owners of two (2) parcels of land covered by
Transfer Certificate of Title ( TCT) Nos. 162632 and 162633
located at Barangay Sta. Lourdes, Puerto Princesa City. Prior
to the acquisition of these properties, TCT No. 162632
(property) was already the subject of expropriation
proceedings filed by the City Government of Puerto Princesa
(City Government) on May 23, 1996 against its former
registered owner, Cirilo Arellano. The expropriation case was
filed with the Regional Trial Court (RTC) of Palawan and
Puerto Princesa, Branch 95, and was docketed as Civil Case
No. 2902. The RTC already fixed the price and issued an order
for the City Government to deposit P6,000,000.00 as just
compensation for the property.2
The respondent briefly represented the complainant and her
late husband in the expropriation case as intervenors for being
the new registered owners of the property. The complainant
alleged that the respondent convinced them to sign a
"preparatory deed of sale" for the sale of the property, but he
left blank the space for the name of the buyer and for the
amount of consideration. The respondent further alleged that
the deed would be used in the sale to the City Government
when the RTC issues the order to transfer the titles.3 The
respondent then fraudulently – without their knowledge and
consent, and contrary to their understanding – converted the
"preparatory deed of sale" into a Deed of Absolute Sale dated
June 4, 2001,4 selling the subject property to Reynold So and
Sylvia Carlos So for P200,000.00.5
property "for such a measly sum" when they stood to get at
least P6,000,000.00 as just compensation.6
The complainant also claimed that the respondent notarized
the Deed of Absolute Sale dated June 4, 2001 even though
Reynold and Sylvia (his mother’s sister) are his uncle and his
aunt, respectively.7
The respondent denied all the allegations in the complaint.8
The respondent argued that the complainant’s greed to get the
just Compensation9 caused her to file this "baseless,
unfounded and malicious" disbarment case.10 He claimed that
the sale was their voluntary transaction and that he "simply
ratified the document."11 He also claimed that Reynold and
Laurentino had originally jointly purchased the properties
from Cirilo Arellano on July 10, 2000; that they were co-
owners for some time; and that Laurentino subsequently sold
his share to Reynold under a Deed of Absolute Sale dated June
4, 2001.12
The respondent specifically denied asking the complainant and
her late husband to execute any "preparatory deed of sale" in
favor of the City Government.13 He also denied that the Deed
of Absolute Sale contained blanks when they signed it.14 That
he filed for the spouses Ylaya and Reynold an opposition to
the just compensation the RTC fixed proved that there was no
agreement to use the document for the expropriation
case.15 He also argued that it was clear from the document that
the intended buyer was a natural person, not a juridical person,
because there were spaces for the buyer’s legal age, marital
status, and citizenship,16 and he was even constrained to file a
subsequent Motion to Intervene on behalf of Reynold because
the complainant "maliciously retained" the TCTs to the subject
properties after borrowing them from his office. 17 Lastly, he
denied violating the Rules on Notarial Practice.18
On September 4, 2006, the respondent filed a Motion to
Resolve or Decide the Case dated August 24, 2006 praying for
the early resolution of the complaint.19
On December 5, 2006, the complainant filed an Ex Parte
Motion to Withdraw the Verified Complaint and To Dismiss
the Case dated November 14, 2006.20
On February 28, 2008, the complainant executed an
Affidavit21 affirming and confirming the existence,
genuineness and due execution of the Deed of Absolute Sale
notarized on March 6, 2000;22 the Memorandum of Agreement
(MOA) dated April 19, 2000;23 and the Deed of Absolute Sale
notarized in 2001.24 The respondent submitted this Affidavit to
the IBP as an attachment to his Motion for Reconsideration of
April 21, 2008.25
The IBP’s Findings
1
In her Report and Recommendation dated November 19,
2007, IBP Commissioner Anna Caridad Sazon-Dupaya found
the respondent administratively liable for violating Canon 1,
Rule 1.01 (A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct) and Canon 16 ("A lawyer shall
hold in trust all moneys and properties of his client that may
come into his possession) of the Code of Professional
Responsibility, and Section 3(c), Rule IV of A.M. No. 02-8-
13-SC (2004 Rules on Notarial Practice).26 She recommended
his suspension from the practice of law for a period of six (6)
months.27
In its Resolution No. XVIII-2007-30228 dated December 14,
2007, the IBP Board of Governors adopted the IBP
Commissioner’s finding, but increased the penalty imposed to
two (2) years suspension and a warning:
RESOLVED to ADOPT and APPROVE, as it is hereby
unanimously ADOPTED and APPROVED, with modification,
the Report and Recommendation of the Investigating
Commissioner [in] the above-entitled case, herein made part
of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record
and the applicable laws and rules, and considering
respondent’s violations of Canon 1, [Rule] 1.01 and Canon 16
of the Code of Professional Responsibility and Rule IV, Sec.
39(c) of A.M. No. 02-8-13-SC (2004 Rules on Notarial
Practice), Atty. Glenn Carlos Gacott is hereby SUSPENDED
from practice of law for two (2) years with a Warning that
commission of a similar offense will be dealt with more
severely. [emphases supplied]
On May 8, 2008, the respondent filed a Motion for
Reconsideration dated April 21, 2008, attaching, among
others, a copy of the complainant’s Affidavit dated February
27, 2008, admitting the existence, genuineness and due
execution of the Deed of Absolute Sale between Cirilo and
Laurentino; the MOA between Laurentino and Reynold; the
Deed of Absolute Sale between Laurentino and Reynold; and
the Compromise Agreement between Reynold and the
complainant dated November 14, 2006 for the expropriation
case.29
On September 4, 2008, the respondent filed a Manifestation
with the Supreme Court, requesting that the IBP be directed to
resolve his Motion for Reconsideration.30
By Resolution No. XIX-2010-545 dated October 8, 2010,31 the
IBP Board of Governors denied the respondent’s Motion for
Reconsideration for failing to raise any new substantial matter
or any cogent reason to warrant a reversal or even a
modification of its Resolution No. XVIII-2007-302.32
On March 14, 2012, the respondent filed a Petition for Review
(on appeal) assailing the IBP’s findings, as follows:33
a) In conveniently concluding that the Deed of
Absolute Sale was pre-signed and fraudulently
notarized without requiring Fe Ylaya to adduce
evidence in a formal hearing thus, violated the
respondent’s right to due process as he was not able
to cross-examine her. This is not to mention that the
complainant failed to offer corroborative proof to
prove her bare allegations;
b) In sweepingly and arbitrarily disregarded/skirted
(sic) the public documents (MOA and 2 other DOAS)
duly executed by the parties therein and notarized by
the respondent;
c) In totally ignoring the complainant’s Affidavit
admitting the genuineness and due execution of the
Deed of Absolute Sale in issue;
d) In arbitrarily concluding the absence of co-
ownership by Reynold So and Fe Ylaya of the subject
lots despite the existence of a notarized MOA clearly
showing the co-ownership of Ylaya and So; and
e) In finding the respondent/appellant’s act of
notarizing the DOAS as contrary to the notarial rules.
The Issues
From the assigned errors, the complainant poses the following
issues:
(1) whether the IBP violated the respondent’s right to
due process; and
(2) whether the evidence presented supports a finding
that the respondent is administratively liable for
violating Canon 1, Rule 1.01 and Canon 16 of the
Code of Professional Responsibility, and Section
3(c), Rule IV of A.M. No. 02-8-13-SC.
The Court’s Ruling
We set aside the findings and recommendations of the IBP
Commissioner and those of the IBP Board of Governors
finding the respondent liable for violating Canon 1, Rules 1.01
and Section 3(c), Rule IV of A.M. No. 02-8-13-SC.34
We however hold the respondent liable for violating Canon 16
of the Code of Professional Responsibility for being remiss in
his obligation to hold in trust his client’s properties. We
likewise find him liable for violation of (1) Canon 15, Rule
15.03 for representing conflicting interests without the written
consent of the represented parties, thus, violating the rule on
conflict of interests; and (2) Canon 18, Rule 18.03 for
neglecting a legal matter entrusted to him.
a. Due process violation
The most basic tenet of due process is the right to be heard.
Denial of due process means the total lack of opportunity to be
heard or to have one’s day in court. As a rule, no denial of due
2
process takes place where a party has been given an
opportunity to be heard and to present his case;35 what is
prohibited is the absolute lack of opportunity to be heard.
The respondent claims that the IBP violated his right to due
process because he was not given the "amplest opportunity to
defend himself, to cross examine the witness complainant, to
object to the admissibility of documents or present
controverting evidence"36 when the IBP rendered its
conclusion without requiring the complainant to adduce
evidence in a formal hearing and despite the absence of
corroborative proof. He insists that these defects rendered the
complainant’s allegations as hearsay, and the IBP’s report,
recommendation or resolution null and void.
Although the respondent failed to have a face-to-face
confrontation with the complainant when she failed to appear
at the required mandatory conference on October 6,
2005,37 the records reveal that the respondent fully
participated during the entire proceedings and submitted
numerous pleadings, including evidence, before the IBP. He
was even allowed to file a motion for reconsideration
supported by his submitted evidence, which motion the IBP
considered and ruled upon in its Resolution No. XIX-2010-
545 dated October 8, 2010.38
In Alliance of Democratic Free Labor Organization v.
Laguesma,39 we held that due process, as applied to
administrative proceedings, is the opportunity to explain one’s
side. In Samalio v. Court of Appeals,40 due process in an
administrative context does not require trial-type proceedings
similar to those in courts of justice. Where the opportunity to
be heard, either through oral arguments or through pleadings,
is accorded, no denial of procedural due process takes place.
The requirements of due process are satisfied where the parties
are afforded a fair and reasonable opportunity to explain their
side of the controversy at hand.
Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the
President,41 we held that "due process, as a constitutional
precept, does not always, and in all situations, require a trial-
type proceeding. Litigants may be heard through pleadings,
written explanations, position papers, memoranda or oral
arguments. The standard of due process that must be met in
administrative tribunals allows a certain degree of latitude[,
provided that] fairness is not ignored. It is, therefore, not
legally objectionable for being violative of due process, for an
administrative agency to resolve a case based solely on
position papers, affidavits or documentary evidence submitted
by the parties."42
In this case, the respondent’s failure to cross-examine the
complainant is not a sufficient ground to support the claim that
he had not been afforded due process. The respondent was
heard through his pleadings, his submission of alleged
controverting evidence, and his oral testimony during the
October 6, 2005 mandatory conference. These pleadings,
evidence and testimony were received and considered by the
IBP Commissioner when she arrived at her findings and
recommendation, and were the bases for the IBP Board’s
Resolution.
Moreover, "any seeming defect in the observance of due
process is cured by the filing of a motion for reconsideration.
A denia of due process cannot be successfully invoked by a
party who has had the opportunity to be heard on his motion
for reconsideration. Undoubtedly in this case, the requirement
of the law was afforded to the respondent." 43
We also note that the respondent, on a Motion to Resolve or
Decide the Case dated August 24, 2006, submitted his case to
the IBP for its resolution without any further hearings. The
motion, filed almost one year after the mandatory conference
on October 6, 2005, significantly did not contain any
statement regarding a denial of due process. In effect, the
respondent himself waived his cross-examination of the
complainant when he asked the IBP Board of Governors to
resolve the case based on the pleadings and the evidence on
record. To quote his own submission:
1. On June 30, 2004, a complaint was filed in this
case;
2. On October 19, 2004, the respondent filed his
comment with all its attachments denying all the
allegations in the complaint;
3. On June 23, 2005, the respondent filed his position
paper. On April 28, 2006, the respondent also filed
his supplemental position paper. By contrast, up to
this date, the complainant/petitioner has not filed her
verified position paper thus, waived her right to file
the same;
4. There being no other genuine issues to be heard in
this case as all the defenses and counter-arguments
are supported by documentary evidence, it is most
respectfully prayed that the instant case be resolved
on its merits or be ordered dismissed for lack of merit
without further hearing;
5. Further, considering that there is an on-going case
in Branch 52 of the Regional Trial Court of Palawan
in Civil Case No. 2902 for Expropriation involving
the same property, and such fact was deliberately
omitted by the complainant in her Verified Complaint
as shown in the certification of non-forum shopping,
the outright dismissal of this case is warranted,
hence, this motion; and
6. This is meant to expedite the termination of this
case.44 (underscore ours; italics supplied)
Finally, we note Section 11, Rule 139-B of the Rules of Court
which provides that:
No defect in a complaint, notice, answer, or in the proceeding
or the Investigator’s Report shall be considered as substantial
3
unless the Board of Governors, upon considering the whole
record, finds that such defect has resulted or may result in a
miscarriage of justice, in which event the
Board shall take such remedial action as the circumstances
may warrant, including invalidation of the entire proceedings.
In this case, the IBP Commissioner’s findings were twice
reviewed by the IBP Board of Governors – the first review
resulted in Resolution No. XVIII-2007-30245 dated December
14, 2007, affirming the IBP Commissioner’s findings, but
modifying the penalty; the second review resulted in
Resolution No. XIX-2010-545 dated October 8,
2010,46 denying the respondent’s motion for reconsideration.
In both instances, the IBP Board of Governors found no defect
or miscarriage of justice warranting a remedial action or the
invalidation of the proceedings.
We emphasize that disciplinary proceedings against lawyers
are sui generis in that they are neither purely civil nor purely
criminal; they involve investigations by the Court into the
conduct of one of its officers,47 not the trial of an action or a
suit.
Disciplinary proceedings against lawyers are sui generis.
Neither purely civil nor purely criminal, they do not involve a
trial of an action or a suit, but is rather an investigation by the
Court into the conduct of one of its officers. Not being
intended to inflict punishment, it is in no sense a criminal
prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. It may be initiated by the Court motu
proprio. Public interest is its primary objective, and the real
question for determination is whether or not the attorney is
still a fit person to be allowed the privileges as such. Hence, in
the exercise of its disciplinary powers, the Court merely calls
upon a member of the Bar to account for his actuations as an
officer of the Court with the end in view of preserving the
purity of the legal profession and the proper and honest
administration of justice by purging the profession of
members who by their misconduct have proved themselves no
longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such
posture, there can thus be no occasion to speak of a
complainant or a prosecutor. [emphases deleted]
The complainant in disbarment cases is not a direct party to
the case but a witness who brought the matter to the attention
of the Court.48 Flowing from its sui generis character, it is not
mandatory to have a formal hearing in which the complainant
must adduce evidence.
From all these, we find it clear that the complainant is not
indispensable to the disciplinary proceedings and her failure to
appear for cross-examination or to provide corroborative
evidence of her allegations is of no merit. What is important is
whether, upon due investigation, the IBP
Board of Governors finds sufficient evidence of the
respondent’s misconduct to warrant the exercise of its
disciplinary powers.
b. Merits of the Complaint
"In administrative cases against lawyers, the quantum of proof
required is preponderance of evidence which the complainant
has the burden to discharge."49 Preponderance of evidence
means that the evidence adduced by one side is, as a whole,
superior to or has a greater weight than that of the other. It
means evidence which is more convincing to the court as
worthy of belief compared to the presented contrary evidence.
Under Section 1, Rule 133 of the Rules of Court, in
determining whether preponderance of evidence exists, the
court may consider the following: (a) all the facts and
circumstances of the case; (b) the witnesses’ manner of
testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of
the facts to which they testify, and the probability or
improbability of their testimony; (c) the witnesses’ interest or
want of interest, and also their personal credibility so far as the
same may ultimately appear in the trial; and (d) the number of
witnesses, although it does not mean that preponderance is
necessarily with the greater number.50 By law, a lawyer enjoys
the legal presumption that he is innocent of the charges against
him until the contrary is proven, and that as an officer of the
court, he is presumed to have performed his duties in
accordance with his oath.51
The IBP Commissioner set out her findings as follows:
The undersigned, after a careful evaluation of the evidence
presented by both parties, finds that the charges of the
complainant against the respondent are worthy of belief based
on the following:
First, the allegation of the respondent that Reynold So was
actually co-owner of spouses Ylanas (sic) in the properties
subject of the Deed of Sale between Felix Arellano and
Spouses Ylanas (sic) is hard to believe despite the presentation
of the Memorandum of Agreement.
It is elementary in Rules of Evidence that when the contents of
a written document are put in issue, the best evidence would
be the document itself. In the Deed of Sale between Felix
Arellano and Spouses Ylanas (sic), the buyer of the subject
properties is only Laurentino L. Ylaya married to Fe A. Ylaya.
The document does not state that Reynold So was likewise a
buyer together with Laurentino Ylaya, or that the former paid
half of the purchase price.
Also, it is hard for this Commission to believe that Reynold
So, assisted by a lawyer at that and who allegedly paid half of
the purchase price, would not insist for the inclusion of his
name in the Deed of Sale as well as the Transfer Certificate of
Title subsequently issued.
4
The Memorandum of Agreement between the spouses Ylaya
and Reynold So produced by the respondent cannot overturn
the belief of this Commission considering that the
Memorandum of Agreement was executed more than a month
AFTER the Deed of Sale between Felix Arellano and the
Ylayas was notarized. This is not to mention the fact that the
complainant denied ever having executed the Memorandum of
Agreement. A close examination of the signatories in the said
Memorandum of Agreement would reveal that indeed, the
alleged signatures of the complainant and her husband are not
the same with their signatures in other documents.
Assuming, for the sake of argument, that the Memorandum of
Agreement is valid, thereby making Laurentino Ylaya and co-
owner Reynold So co-owners of the subject properties (Please
see Annex "B" of respondent’s Comment), this Commission
finds it hard to believe Laurentino Ylaya would sell it to
Reynold So for P200,000 x x x when his minimum expenses
for the purchase thereof is already P225,000.00 and he was
expecting to receiveP7,000,000.00, more or less. That would
mean that if Reynold So and the complainant were co-owners,
theP7,000,000.00 would then be equally divided among them
at P3,500,000.00 each, far above the P200,000.00 selling price
reflected in the pre-signed Deed of Sale.
As to the second issue, this Commission believes that the
respondent committed serious error in notarizing the Deed of
Sale and the Memorandum of Agreement between his uncle
Reynold So and Laurentino Ylaya based on Rule IV, Section 3
(c) of A.M. No. 02-8-13-SC which provides as follows:
"Sec. 3. Disqualifications – a notary public is disqualified
from performing a notarial act if he:
(a) x x x.
(b) x x x.
(c) is a spouse, common-law partner, ancestor,
descendant, or relative by affinity or consanguinity of
the principal within the fourth civil degree."
The defense therefore of the respondent that he did not violate
the aforementioned Rule becausehis uncle Reynold So, the
buyer is not the principal in the Subject Deed of Sale but the
seller Laurentino Ylaya (please see page 3 of the respondent’s
Supplemental Position Paper) is misplaced. Clearly, both the
buyer and the seller in the instant case are considered
principals in the contract entered into.
Furthermore, if we are to consider the argument of the
respondent that his uncle was not a principal so as to apply the
afore-quoted provision of the Rules, the respondent still
violated the Rules when he notarized the subject
Memorandum of Agreement between Laurentino Ylaya and
his uncle Reynold So. Clearly, both complainant and Reynold
So were principal parties in the said Memorandum of
Agreement.52
The respondent argues that the IBP Commissioner’s findings
are contrary to the presented evidence, specifically to the
MOA executed by Laurentino and Reynold acknowledging the
existence of a co-ownership;53 to the complainant’s Ex Parte
Motion to Withdraw the Verified Complaint and To Dismiss
the Case dated November 14, 2006 where she stated that the
parties have entered into a compromise agreement in Civil
Case No. 2902, and that the disbarment complaint arose from
a misunderstanding, miscommunication and improper
appreciation of facts;54 to her Affidavit dated February 27,
200855 affirming and confirming the existence, genuineness
and due execution of the Deed of Absolute Sale notarized on
March 6, 2000;56 and to the Deed of Absolute Sale notarized
in 2001.57
In all, the respondent claims that these cited pieces of evidence
prove that this administrative complaint against him is
fabricated, false and untrue. He also points to Atty. Robert
Peneyra, the complainant’s counsel in this administrative case,
as the hand behind the complaint.58 According to the
respondent, Atty. Peneyra harbors ill-will against him and his
family after his father filed several administrative cases
against Atty. Peneyra, one of which resulted in the imposition
of a warning and a reprimand on Atty. Peneyra. 59
Reynold, in his Affidavit dated October 11, 2004, confirms
that there was a co-ownership between him and Laurentino;
that Laurentino decided to sell his half of the property to
Reynold because he (Laurentino) had been sickly and in dire
need of money to pay for his medical bills; that Laurentino
agreed to the price of P200,000.00 as this was almost the same
value of his investment when he and Reynold jointly acquired
the property; and that the sale to Reynold was with the
agreement and consent of the complainant who voluntarily
signed the Deed of Sale.60
After examining the whole record of the case, we agree with
the respondent and find the evidence insufficient to prove the
charge that he violated Canon 1, Rule 1.01 of the Code of
Professional Responsibility and Section 3(c), Rule IV of A.M.
No. 02-8-13-SC. Specifically, (1) the evidence against the
respondent fails to show the alleged fraudulent and deceitful
acts he has taken to mislead the complainant and her husband
into signing a "preparatory deed of sale" and the conversion
into a Deed of Absolute Sale dated June 4, 2001 in favor of
Reynold; and (2) no prohibition exists against the notarization
of a document in which any of the parties interested is the
notary’s relative within the 4th civil degree, by affinity or
consanguinity, at that time the respondent notarized the
documents.
In her Report and Recommendation,61 the IBP Commissioner
concluded that the respondent is liable for deceit and fraud
because he failed to prove the existence of a co-ownership
between Laurentino and Reynold; in her opinion, the
signatures of the complainant and of her husband on the MOA
"are not the same with their signatures in other documents." 62
We do not agree with this finding. While the facts of this case
may raise some questions regarding the respondent’s legal
5
practice, we nevertheless found nothing constituting clear
evidence of the respondent’s specific acts of fraud and deceit.
His failure to prove the existence of a co-ownership does not
lead us to the conclusion that the MOA and the Deed of
Absolute Sale dated June 4, 2001 are spurious and that the
respondent was responsible for creating these spurious
documents. We are further persuaded, after noting that in
disregarding the MOA, the IBP Commissioner failed to
specify what differences she observed in the spouses Ylaya’s
signatures in the MOA and what documents were used in
comparison.
Apart from her allegations, the complainant’s pieces of
evidence consist of TCT Nos. 162632 and 162633;63 her
Motion for Leave to Intervene in Civil Case No. 2902 dated
May 17, 2000;64 the RTC order in Civil Case No. 2902 dated
November 6, 2000 fixing the price of just compensation; 65 the
Deed of Absolute Sale dated June 4, 2001;66 the spouses
Ylaya’s Verified Manifestation dated September 2, 2002, filed
with the RTC in Civil Case No. 2902, assailing the Motion to
Deposit Just Compensation filed by the respondent on behalf
of Reynold and manifesting the sale between Laurentino and
Reynold;67 the Provincial Prosecutor’s Subpoena to the
complainant in connection with the respondent’s complaint for
libel;68 the respondent’s complaint for libel against the
complainant dated August 27, 2003;69 the complainant’s
Counter Affidavit dated March 26, 2004 against the charge of
libel;70 and the respondent’s letter to the Provincial Attorney
of Palawan dated April 5, 2004, requesting for "official
information regarding the actual attendance of Atty. ROBERT
Y. PENEYRA" at an MCLE seminar.71
We do not see these documentary pieces of evidence as proof
of specific acts constituting deceit or fraud on the respondent’s
part. The documents by themselves are neutral and, at the
most, show the breakdown of the attorney-client relationship
between the respondent and the complainant. It is one thing to
allege deceit and misconduct, and it is another to demonstrate
by evidence the specific acts constituting these allegations.72
We reiterate that in disbarment proceedings, the burden of
proof is on the complainant; the Court exercises its
disciplinary power only if the complainant establishes her case
by clear, convincing, and satisfactory
evidence.73Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has a greater
weight than that of the other party. When the pieces of
evidence of the parties are evenly balanced or when doubt
exists on the preponderance of evidence, the equipoise rule
dictates that the decision be against the party carrying the
burden of proof.74
In this case, we find that the complainant’s evidence and the
records of the case do not show the respondent’s deliberate
fraudulent and deceitful acts. In the absence of such proof, the
complaint for fraud and deceit under Canon 1, Rule 1.01 of the
Code of Professional Responsibility must perforce be
dismissed.
We note that the respondent has not squarely addressed the
issue of his relationship with Reynold, whom the complainant
alleges to be the respondent’s uncle because Reynold is
married to the respondent’s maternal aunt.75 However, this is
of no moment as the respondent cannot be held liable for
violating Section 3(c), Rule IV of A.M. No. 02-8-13-SC
because the Deed of Absolute Sale dated June 4, 2001 76 and
the MOA dated April 19, 200077 were notarized by the
respondent prior to the effectivity of A.M. No. 02-8-13-SC on
July 6, 2004. The notarial law in force in the years 2000 -
2001 was Chapter 11 of Act No. 2711 (the Revised
Administrative Code of 1917) which did not contain the
present prohibition against notarizing documents where the
parties are related to the notary public within the 4th civil
degree, by affinity or consanguinity. Thus, we must likewise
dismiss the charge for violation of A.M. No. 02-8-13-SC.
c. Liability under Canons 15, 16 and 18 We find the
respondent liable under Canon 15, Rule 15.03 for representing
conflicting interests without the written consent of all
concerned, particularly the complainant; under Canon 16 for
being remiss in his obligation to hold in trust his client’s
properties; and under Canon 18, Rule 18.03 for neglecting a
legal matter entrusted to him.
Canon 15, Rule 15.03 states:
A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of
the facts. [emphasis ours]
The relationship between a lawyer and his client should
ideally be imbued with the highest level of trust and
confidence. Necessity and public interest require that this be
so. Part of the lawyer’s duty to his client is to avoid
representing conflicting interests. He is duty bound to decline
professional employment, no matter how attractive the fee
offered may be, if its acceptance involves a violation of the
proscription against conflict of interest, or any of the rules of
professional conduct. Thus, a lawyer may not accept a retainer
from a defendant after he has given professional advice to the
plaintiff concerning his claim; nor can he accept employment
from another in a matter adversely affecting any interest of his
former client. It is his duty to decline employment in any of
these and similar circumstances in view of the rule prohibiting
representation of conflicting interests.78
The proscription against representation of conflicting interest
applies "even if the lawyer would not be called upon to
contend for one client that which the lawyer has to oppose for
the other, or that there would be no occasion to use the
confidential information acquired from one to the
disadvantage of the other as the two actions are wholly
unrelated."79 The sole exception is provided in Canon 15, Rule
15.03 of the Code of Professional Responsibility – if there is a
written consent from all the parties after full disclosure.
Based on the records, we find substantial evidence to hold the
respondent liable for violating Canon 15, Rule 15.03 of the
6
Code of Professional Responsibility. The facts of this case
show that the respondent retained clients who had close
dealings with each other. The respondent admits to acting as
legal counsel for Cirilo Arellano, the spouses Ylaya and
Reynold at one point during the proceedings in Civil Case No.
2902.80 Subsequently, he represented only Reynold in the
same proceedings,81 asserting Reynold’s ownership over the
property against all other claims, including that of the spouses
Ylaya.82
We find no record of any written consent from any of the
parties involved and we cannot give the respondent the benefit
of the doubt in this regard. We find it clear from the facts of
this case that the respondent retained Reynold as his client and
actively opposed the interests of his former client, the
complainant. He thus violated Canon 15, Rule 15.03 of the
Code of Professional Responsibility.
We affirm the IBP Commissioner’s finding that the
respondent violated Canon 16. The respondent admits to
losing certificates of land titles that were entrusted to his care
by Reynold.83 According to the respondent, the complainant
"maliciously retained" the TCTs over the properties sold by
Laurentino to Reynold after she borrowed them from his
office.84 Reynold confirms that the TCTs were taken by the
complainant from the respondent’s law office.85
The respondent is reminded that his duty under Canon 16 is to
"hold in trust all moneys and properties of his client that may
come into his possession." Allowing a party to take the
original TCTs of properties owned by another – an act that
could result in damage – should merit a finding of legal
malpractice. While we note that it was his legal staff who
allowed the complainant to borrow the TCTs and it does not
appear that the respondent was aware or present when the
complainant borrowed the TCTs,86 we nevertheless hold the
respondent liable, as the TCTs were entrusted to his care and
custody; he failed to exercise due diligence in caring for his
client’s properties that were in his custody.
We likewise find the respondent liable for violating Canon 18,
Rule 18.03 for neglecting a legal matter entrusted to him.
Despite the respondent’s admission that he represented the
complainant and her late husband in Civil Case No. 2902 and
that he purportedly filed a Motion for Leave to Intervene in
their behalf, the records show that he never filed such a
motion for the spouses Ylaya. The complainant herself states
that she and her late husband were forced to file the Motion
for Leave to Intervene on their own behalf. The records of the
case, which include the Motion for Leave to Intervene filed by
the spouses Ylaya, support this conclusion.87
Canon 18, Rule 18.03 requires that a lawyer "shall not neglect
a legal matter entrusted to him, and his negligence in
connection [therewith] shall render him liable." What amounts
to carelessness or negligence in a lawyer’s discharge of his
duty to his client is incapable of an exact formulation, but the
Court has consistently held that the mere failure of a lawyer to
perform the obligations due his client is per se a violation. 88
In Canoy v. Ortiz,89 we held that a lawyer’s failure to file a
position paper was per se a violation of Rule 18.03 of the
Code of Professional Responsibility. Similar to Canoy, the
respondent clearly failed in this case in his duty to his client
when, without any explanation, he failed to file the Motion for
Leave to Intervene on behalf of the spouses Ylaya. Under the
circumstances, we find that there was want of diligence;
without sufficient justification, this is sufficient to hold the
respondent liable for violating Canon 18, Rule 18.03 of the
Code of Professional Responsibility.
d. The Complainant’s Ex Parte Motion to Withdraw the
Verified Complaint and to Dismiss the Case and her Affidavit
We are aware of the complainant’s Ex Parte Motion to
Withdraw the Verified Complaint and To Dismiss the Case
dated November 14, 200690 and her Affidavit91 affirming and
confirming the existence, genuineness and due execution of
the Deed of Absolute Sale notarized on March 6, 2000. 92 The
complainant explains that the parties have entered into a
compromise agreement in Civil Case No. 2902, and that this
disbarment complaint was filed because of a
"misunderstanding, miscommunication and improper
appreciation of facts";93 she erroneously accused the
respondent of ill motives and bad intentions, but after being
enlightened, she is convinced that he has no personal or
pecuniary interests over the properties in Civil Case No. 2902;
that such misunderstanding was due to her unfamiliarity with
the transactions of her late husband during his lifetime. 94 The
complainant now pleads for the respondent’s forgiveness,
stating that he has been her and her late husband’s lawyer for
over a decade and affirms her trust and confidence in
him.95 We take note that under their Compromise Agreement
dated November 14, 2006 for the expropriation case, 96 the
complainant and Reynold equally share the just compensation,
which have since increased to P10,000,000.00.
While the submitted Ex Parte Motion to Withdraw the
Verified Complaint and to Dismiss the Case and the Affidavit
appear to exonerate the respondent, complete exoneration is
not the necessary legal effect as the submitted motion and
affidavit are immaterial for purposes of the present
proceedings. Section 5, Rule 139-B of the Rules of Court
states that, "No investigation shall be interrupted or terminated
by reason of the desistance, settlement, compromise,
restitution, withdrawal of charges, or failure of the
complainant to prosecute the same."
In Angalan v. Delante,97 despite the Affidavit of Desistance,
we disbarred the respondent therein for taking advantage of
his clients and for transferring the title of their property to his
name. In Bautista v. Bernabe,98 we revoked the lawyer’s
notarial commission, disqualified him from reappointment as a
notary public for two years, and suspended him from the
practice of law for one year for notarizing a document without
requiring the affiant to personally appear before him. In this
cited case, we said:
Complainant’s desistance or withdrawal of the complaint does
not exonerate respondent or put an end to the administrative
7
proceedings. A case of suspension or disbarment may proceed practice of law or disbarment are always subject to this
regardless of interest or lack of interest of the complainant. Court’s review and approval.
What matters is whether, on the basis of the facts borne out by
the record, the charge of deceit and grossly immoral conduct The Penalty
has been proven. This rule is premised on the nature of
disciplinary proceedings. A proceeding for suspension or
In Solidon v. Macalalad,103 we imposed the penalty of
disbarment is not a civil action where the complainant is a
suspension of six ( 6) months from the practice of law on the
plaintiff and the respondent lawyer is a defendant. respondent therein for his violation of Canon 18, Rule 18.03
Disciplinary proceedings involve no private interest and afford and Canon 16, Rule 16.01 of the Code of Professional
no redress for private grievance. They are undertaken and
Responsibility. In Josefina M. Aniñon v. Atty. Clemencio
prosecuted solely for the public welfare. They are undertaken
Sabitsana, Jr.,104 we suspended the respondent therein from the
for the purpose of preserving courts of justice from the official
practice of law for one (1) year, for violating Canon 15, Rule
ministration of persons unfit to practice in them. The attorney
15.03 of the Code of Professional Responsibility. Under the
is called to answer to the court for his conduct as an officer of circumstances, we find a one (1) year suspension to be a
the court. The complainant or the person who called the sufficient and appropriate sanction against the respondent.
attention of the court to the attorney’s alleged misconduct is in
no sense a party, and has generally no interest in the outcome
except as all good citizens may have in the proper WHEREFORE, premises considered, we set aside Resolution
administration of justice.99 No. XVIII-.2007-302 dated December 14, 2007 and
Resolution No. XIX-2010-545 dated October 8, 2010 of the
IBP Board of Governors, and find respondent Atty. Glenn
In sum, in administrative proceedings against lawyers, the
Carlos Gacott GUILTY of violating Rule 15.03 of Canon 15,
complainant’s desistance or withdrawal does not terminate the
Canon 16, and Rule 18.03 of Canon 18 of the Code of
proceedings. This is particularly true in the present case where
Professional Responsibility. As a penalty, he is SUSPENDED
pecuniary consideration has been given to the complainant as
from the practice of law for one (1) year, with a WARNING
a consideration for her desistance. We note in this regard that that a repetition of the same or similar act will be dealt with
she would receiveP5,000,000.00, or half of the just
more severely.
compensation under the Compromise Agreement,100 and thus
agreed to withdraw all charges against the respondent. 101 From
this perspective, we consider the complainant’s desistance to SO ORDERED.
be suspect; it is not grounded on the fact that the respondent
did not commit any actual misconduct; rather, because of the Footnotes
consideration, the complainant is now amenable to the
position of the respondent and/or Reynold. 1
Rollo, pp. 2-6.

e. Procedural aspect 2
Id. at 2-4, 169.

We remind all parties that resolutions from the IBP Board of 3

Id. at 3-4.
Governors are merely recommendatory and do not attain
finality without a final action from this Court. Section 12, 4
Id. at 4-5; Annexes E and E-1 of the Complaint, id.
Rule 139-B is clear on this point that: at 16-17.

Section 12. Review and decision by the Board of Governors. – 5

Id. at 4-5.

xxxx 6
Id. at 4.

(b) If the Board, by the vote of a majority of its total 7

Ibid.
membership, determines that the respondent should be
suspended from the practice of law or disbarred, it shall issue 8
Id. at 36-41.
a resolution setting forth its findings and recommendations
which, together with the whole record of the case, shall
9
forthwith be transmitted to the Supreme Court for final Id. at 36.
action.1âwphi1
10
Id. at 40.
The Supreme Court exercises exclusive jurisdiction to regulate
11
the practice of law.102 It exercises such disciplinary functions Id. at 36.
through the IBP, but it does not relinquish its duty to form its
own judgment. Disbarment proceedings are exercised under 12
Id. at 36-37.
the sole jurisdiction of the Supreme Court, and the IBP’s
recommendations imposing the penalty of suspension from the 13
Id. at 38.
8
14 40
Id. at 38-39. G.R. No. 140079, March 31, 2005, 454 SCRA 462,
473.
15
Id. at 38, 40-41.
41
G.R. No. 170623, July 7, 2010, 624 SCRA 494.
16
Id. at 38.
42
Id. at 502.
17
Id. at 39, 254, 282-288.
43
Id. at 503.
18
Id. at 38.
44
Supra note 19.
19
Id. at 291-292.
45
Supra note 28.
20
Id. at 296-297.
46
Supra note 31.
21
Id. at 326-328.
47
Pena v. Aparicio, A.C. No. 7298, June 25, 2007,
22
Id. at 53-54, 326-328. 525 SCRA 444, 453.

48
23
Id. at 55-56, 326-328. Garrido v. Garrido, A.C. No. 6593, February 4,
2010, 611 SCRA 508, 516.
24
Id. at 16-17, 326-328.
49
Solidon v. Macalalad, A.C. No. 8158, February 24,
25
Id. at 313-325, 326-328. 2010, 613 SCRA 472, 476.

50
26 Aba v. De Guzman, Jr., A.C. No. 7649, December
Id. at 305-312.
14, 2011, 662 SCRA 361, 371.
27
Id. at 312. 51
Id. at 371, citing In Re: De Guzman, 154 Phil. 127
28
(1974); De Guzman v. Tadeo, 68 Phil. 554 (1939); In
Id. at 303-304. Re: Tiongko, 43 Phil. 191 (1922); and Acosta v.
Serrano, 166 Phil. 257 (1977).
29
Id. at 313-325.
52
Rollo, pp. 310-311.
30
Id. at 416-418.
53
Id. at 55-56.
31
See rollo, page number not assigned.
54
Id. at 296-297.
32
Ibid.
55
Id. at 326-328.
33
Ibid; Petition for Review, p. 11.
56
Id. at 53-54, 326-328.
34
Supra note 26.
57
Id. at 16-17, 326-328.
35
Alliance of Democratic Free Labor Organization v.
Laguesma, G.R. No. 108625, March 11, 1996, 254 58
Id. at 254-290; see TSN of Mandatory Conference,
SCRA 565, 574. October 6, 2005.
36
See rollo, page number not assigned; Petition for 59
Id. at 416-417; see Respondent’s Manifestation
Review, p. 14. dated August 26, 2008.
37
Rollo, pp. 254- 290; TSN of Mandatory 60
Id. at 44, 47-48.
Conference, October 6, 2005.
61
38
Id. at 310-311.
Supra note 31.
62
39
Id. at 311.
Supra note 35, at 574.
9
63 86
Id. at 8-12. Id. at 287-288; see TSN of Mandatory Conference,
October 6, 2006.
64
Id. at 12-13.
87
Id. at 169, 185, 191, 282 -285, 288, 349-351; see
65
Id. at 14-15. Complainant’s Position Paper, TSN of Mandatory
Conference on October 6, 2005, Opposition (to the
66
Id. at 16-17. Order dated November 6, 2000) and Motion to
Inhibit in Civil Case No. 2902, and the RTC Decision
67
dated October 4, 2006 in Civil Case No. 2902.
Id. at 18-20.
88
68
Solidon v. Macalalad, supra note 49, at 476.
Id. at 21.
89
69
Adm. Case No. 5458, March 16, 2005, 453 SCRA
Id. at 22-24. 410, 418-419.
70
Id. at 25-31. 90
Supra note 20.
71
Id. at 32. 91
Supra note 21.
72
Arienda v. Aguila, A.C. No. 5637, April 12, 2005, 92
Rollo, pp. 53-54, 326-328; the Deed of Sale is
455 SCRA 282, 286-287. dated January 28, 2000.
73
Id. at 287. 93
Id. at 296.
74
Aba v. De Guzman, Jr., supra note 50, at 372. 94
Ibid.
75
Id. at 89-90, 242. 95
Ibid.
76
Id. at 16-17. 96
Id. at 313-360.
77
Id. at 55-56. 97
A.C. No. 7181, February 6, 2009, 578 SCRA 113,
128.
78
Ruben E. Agpalo, Legal Ethics (1989), p. 150.
98
A.C. No. 6963, February 9, 2006, 482 SCRA 1.
79
Josefina M. Aniñon v. Atty. Clemencio Sabitsana,
Jr., A.C. No. 5098, April 11, 2012. 99
Id. at 8.
80
Rollo, pp. 254, 282-285, 349-351; see TSN of 100
Rollo, pp. 327, 331.
Mandatory Conference, October 6, 2005; RTC
Decision dated October 4, 2006 in Civil Case No. 101
2902. Id. at 332.

102
81 CONSTITUTION, Article VIII, Section 5.
Rollo, pp. 254, 282-285, 349-351; see TSN of
Mandatory Conference, October 6, 2005, RTC
103
Decision dated October 4, 2006 in Civil Case No. Supra note 49, at 480.
2902.
104
Supra note 79.
82
Id. at 349-351; see RTC Decision dated October 4,
2006 in Civil Case No. 2902.

83
Id. at 282-285, 288.

84
Id. at 39.

85
Id. at 48; see Reynold’s Affidavit dated October
11, 2004.

10
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding
Judge, Regional Trial Court-Branch 41, Bacolod City, and
ROSALIE JAYPE-GARCIA, for herself and in behalf of
minor children, namely: JO-ANN, JOSEPH EDUARD,
JESSE ANTHONE, all surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines
boasts of 86.8 million Filipinos- or 93 percent of a total
population of 93.3 million – adhering to the teachings of Jesus
Christ.1 Yet, the admonition for husbands to love their wives
as their own bodies just as Christ loved the church and gave
himself up for her2 failed to prevent, or even to curb, the
pervasiveness of violence against Filipino women. The
National Commission on the Role of Filipino Women
(NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their
husbands and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited
advocacy by women's groups, Congress enacted Republic Act
(R.A.) No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and
criminalizes acts of violence against women and their children
(VAWC) perpetrated by women's intimate partners, i.e,
husband; former husband; or any person who has or had a
sexual or dating relationship, or with whom the woman has a
common child.5 The law provides for protection orders from
the barangay and the courts to prevent the commission of
further acts of VAWC; and outlines the duties and
responsibilities of barangay officials, law enforcers,
prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding
to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the
constitutionality of R.A. 9262 as being violative of the equal
protection and due process clauses, and an undue delegation of
judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent)
filed, for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial
Court (RTC) of Bacolod City for the issuance of a Temporary
Protection Order (TPO) against her husband, Jesus C. Garcia
(petitioner), pursuant to R.A. 9262. She claimed to be a victim
of physical abuse; emotional, psychological, and economic
violence as a result of marital infidelity on the part of
petitioner, with threats of deprivation of custody of her
children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was
34 years old and the former was eleven years her senior. They
have three (3) children, namely: Jo-Ann J. Garcia, 17 years
old, who is the natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6 years old; and
Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful
wife, whose life revolved around her husband. On the other
hand, petitioner, who is of Filipino-Chinese descent, is
dominant, controlling, and demands absolute obedience from
his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took
up law, and even when she was already working part time at a
law office, petitioner trivialized her ambitions and prevailed
upon her to just stay at home. He was often jealous of the fact
that his attractive wife still catches the eye of some men, at
one point threatening that he would have any man eyeing her
killed.9
Things turned for the worse when petitioner took up an affair
with a bank manager of Robinson's Bank, Bacolod City, who
is the godmother of one of their sons. Petitioner admitted to
the affair when private respondent confronted him about it in
2004. He even boasted to the household help about his sexual
relations with said bank manager. Petitioner told private
respondent, though, that he was just using the woman because
of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left
private respondent physically and emotionally wounded. In
one of their quarrels, petitioner grabbed private respondent on
both arms and shook her with such force that caused bruises
and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding.
Petitioner sometimes turned his ire on their daughter, Jo-Ann,
who had seen the text messages he sent to his paramour and
whom he blamed for squealing on him. He beat Jo-Ann on the
chest and slapped her many times. When private respondent
decided to leave petitioner, Jo-Ann begged her mother to stay
for fear that if the latter leaves, petitioner would beat her up.
Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up,
11
he would beat up his father because of his cruelty to private
respondent.11
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17, 2005,
while at home, she attempted suicide by cutting her wrist. She
was found by her son bleeding on the floor. Petitioner simply
fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which
time petitioner never bothered to visit, nor apologized or
showed pity on her. Since then, private respondent has been
undergoing therapy almost every week and is taking anti-
depressant medications.12
When private respondent informed the management of
Robinson's Bank that she intends to file charges against the
bank manager, petitioner got angry with her for jeopardizing
the manager's job. He then packed his things and told private
respondent that he was leaving her for good. He even told
private respondent's mother, who lives with them in the family
home, that private respondent should just accept his
extramarital affair since he is not cohabiting with his paramour
and has not sired a child with her.13
Private respondent is determined to separate from petitioner
but she is afraid that he would take her children from her and
deprive her of financial support. Petitioner had previously
warned her that if she goes on a legal battle with him, she
would not get a single centavo.14
Petitioner controls the family businesses involving mostly the
construction of deep wells. He is the President of three
corporations – 326 Realty Holdings, Inc., Negros Rotadrill
Corporation, and J-Bros Trading Corporation – of which he
and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of P20,000.00 from
one corporation only, the Negros Rotadrill Corporation.
Household expenses amounting to not less than P200,000.00 a
month are paid for by private respondent through the use of
credit cards, which, in turn, are paid by the same corporation
together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary
of P60,000.00 from Negros Rotadrill Corporation, and enjoys
unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16After private
respondent confronted him about the affair, petitioner forbade
her to hold office at JBTC Building, Mandalagan, where all
the businesses of the corporations are conducted, thereby
depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has
not given private respondent an accounting of the businesses
the value of which she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger
of violence against the private respondent and her children
exists or is about to recur, the RTC issued a TPO18 on March
24, 2006 effective for thirty (30) days, which is quoted
hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings
from the conjugal dwelling or family home within 24
hours from receipt of the Temporary Restraining
Order and if he refuses, ordering that he be removed
by police officers from the conjugal dwelling; this
order is enforceable notwithstanding that the house is
under the name of 236 Realty Holdings Inc.
(Republic Act No. 9262 states "regardless of
ownership"), this is to allow the Petitioner (private
respondent herein) to enter the conjugal dwelling
without any danger from the Respondent.
After the Respondent leaves or is removed from the
conjugal dwelling, or anytime the Petitioner decides
to return to the conjugal dwelling to remove things,
the Petitioner shall be assisted by police officers
when re-entering the family home.
The Chief of Police shall also give the Petitioner
police assistance on Sunday, 26 March 2006 because
of the danger that the Respondent will attempt to take
her children from her when he arrives from Manila
and finds out about this suit.
b) To stay away from the petitioner and her children,
mother and all her household help and driver from a
distance of 1,000 meters, and shall not enter the gate
of the subdivision where the Petitioner may be
temporarily residing.
c) Not to harass, annoy, telephone, contact or
otherwise communicate with the Petitioner, directly
or indirectly, or through other persons, or contact
directly or indirectly her children, mother and
household help, nor send gifts, cards, flowers, letters
and the like. Visitation rights to the children may be
subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM
caliber firearm and a Walther PPK and ordering the
Philippine National Police Firearms and Explosives
Unit and the Provincial Director of the PNP to cancel
all the Respondent's firearm licenses. He should also
be ordered to surrender any unlicensed firearms in his
possession or control.
e) To pay full financial support for the Petitioner and
the children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
12
 g) To render an accounting of all advances, benefits,
bonuses and other cash he received from all the
corporations from 1 January 2006 up to 31 March
2006, which himself and as President of the
corporations and his Comptroller, must submit to the
Court not later than 2 April 2006. Thereafter, an
accounting of all these funds shall be reported to the
court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.
h) To ensure compliance especially with the order
granting support pendente lite, and considering the
financial resources of the Respondent and his threat
that if the Petitioner sues she will not get a single
centavo, the Respondent is ordered to put up a
BOND TO KEEP THE PEACE in the amount of
FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private
respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included
the following additional provisions:
i) The petitioners (private respondents herein) are
given the continued use of the Nissan Patrol and the
Starex Van which they are using in Negros
Occidental.
j) The petitioners are given the continued use and
occupation of the house in Parañaque, the continued
use of the Starex van in Metro Manila, whenever they
go to Manila.
k) Respondent is ordered to immediately post a bond
to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner
provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php 150,000.00) per month plus
rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support
could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an
Opposition to the Urgent Ex-Parte Motion for Renewal of the
TPO21 seeking the denial of the renewal of the TPO on the
grounds that it did not (1) comply with the three-day notice
rule, and (2) contain a notice of hearing. He further asked that
the TPO be modified by (1) removing one vehicle used by
private respondent and returning the same to its rightful
owner, the J-Bros Trading Corporation, and (2) cancelling or
reducing the amount of the bond from P5,000,000.00 to a
more manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the
modification of the TPO to allow him visitation rights to his
children.
On May 24, 2006, the TPO was renewed and extended yet
again, but subject only to the following modifications prayed
for by private respondent:
a) That respondent (petitioner herein) return the
clothes and other personal belongings of Rosalie and
her children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the
Temporary Protection Order by his counsel,
otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of
furniture and equipment in the conjugal house in
Pitimini St., Capitolville Subdivision, Bacolod City
within 24 hours from receipt of the Temporary
Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the
Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight
(8) hours from receipt of the Temporary Protection
Order by his counsel, and that he cannot return until
48 hours after the petitioners have left, so that the
petitioner Rosalie and her representatives can remove
things from the conjugal home and make an
inventory of the household furniture, equipment and
other things in the conjugal home, which shall be
submitted to the Court.
d) Deliver full financial support of Php200,000.00
and Php50,000.00 for rental and Php25,000.00 for
clothes of the three petitioners (sic) children within
24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in
indirect contempt of Court;
e) That respondent surrender his two firearms and all
unlicensed firearms to the Clerk of Court within 24
hours from receipt of the Temporary Protection Order
by his counsel;
f) That respondent shall pay petitioner educational
expenses of the children upon presentation of proof
of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial
support; failed to faithfully comply with the TPO; and
committed new acts of harassment against her and their
children, private respondent filed another application24for the
issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by
J-Bros Trading, Inc., of which the latter was purportedly no
longer president, with the end in view of recovering the Nissan
Patrol and Starex Van used by private respondent and the
children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long
firearms that scared the two small boys, Jessie Anthone and
Joseph Eduard.25
13
While Joseph Eduard, then three years old, was driven to
school, two men allegedly attempted to kidnap him, which
incident traumatized the boy resulting in his refusal to go back
to school. On another occasion, petitioner allegedly grabbed
their daughter, Jo-Ann, by the arm and threatened her.26 The
incident was reported to the police, and Jo-Ann subsequently
filed a criminal complaint against her father for violation of
R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the
filing by the housemaids working at the conjugal home of a
complaint for kidnapping and illegal detention against private
respondent. This came about after private respondent, armed
with a TPO, went to said home to get her and her children's
belongings. Finding some of her things inside a housemaid's
(Sheryl Jamola) bag in the maids' room, private respondent
filed a case for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for
thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or
committing, personally or through another, acts of
violence against the offended party;
2) Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any form
with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his
friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children, Rosalie
J. Garcia's three brothers, her mother Primitiva Jaype,
cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard
Darwin Gayona and the petitioner's other household
helpers from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioners
are temporarily residing, as well as from the schools
of the three children; Furthermore, that respondent
shall not contact the schools of the children directly
or indirectly in any manner including, ostensibly to
pay for their tuition or other fees directly, otherwise
he will have access to the children through the
schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including
.9MM caliber firearm and a Walther PPK to the
Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental
for the period from August 6 to September 6, 2006;
and support in arrears from March 2006 to August
2006 the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-
2007 the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan
Patrol with Plate No. FEW 508 and a Starex van with
Plate No. FFD 991 and should the respondent fail to
deliver said vehicles, respondent is ordered to
provide the petitioner another vehicle which is the
one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell,
lease or otherwise dispose of the conjugal assets, or
those real properties in the name of Jesus Chua
Garcia only and those in which the conjugal
partnership of gains of the Petitioner Rosalie J.
Garcia and respondent have an interest in, especially
the conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other
properties which are conjugal assets or those in
which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest
in and listed in Annexes "I," "I-1," and "I-2,"
including properties covered by TCT Nos. T-186325
and T-168814;
9) Ordered that the Register of Deeds of Bacolod
City and E.B. Magalona shall be served a copy of this
TEMPORARY PROTECTION ORDER and are
ordered not to allow the transfer, sale, encumbrance
or disposition of these above-cited properties to any
person, entity or corporation without the personal
presence of petitioner Rosalie J. Garcia, who shall
affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her
signature will be forged in order to effect the
encumbrance or sale of these properties to defraud
her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court
extended the aforequoted TPO for another ten (10) days, and
gave petitioner a period of five (5) days within which to show
cause why the TPO should not be renewed, extended, or
modified. Upon petitioner's manifestation,30 however, that he
has not received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be furnished a
copy of said motion. Nonetheless, an Order32 dated a day
earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted
hereunder:
xxxx
x x x it appearing further that the hearing could not yet be
finally terminated, the Temporary Protection Order issued on
August 23, 2006 is hereby renewed and extended for thirty
(30) days and continuously extended and renewed for thirty
(30) days, after each expiration, until further orders, and
subject to such modifications as may be ordered by the court.
14
After having received a copy of the foregoing Order,
petitioner no longer submitted the required comment to private
respondent's motion for renewal of the TPO arguing that it
would only be an "exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed
before the Court of Appeals (CA) a petition34 for prohibition
(CA-G.R. CEB-SP. No. 01698), with prayer for injunction and
temporary restraining order, challenging (1) the
constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity
of the modified TPO issued in the civil case for being "an
unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day
Temporary Restraining Order36 (TRO) against the
enforcement of the TPO, the amended TPOs and other orders
pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate
court dismissed36 the petition for failure of petitioner to raise
the constitutional issue in his pleadings before the trial court in
the civil case, which is clothed with jurisdiction to resolve the
same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to
annul the protection orders issued by the trial court constituted
a collateral attack on said law.
His motion for reconsideration of the foregoing Decision
having been denied in the Resolution37 dated August 14, 2007,
petitioner is now before us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE
EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS
ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE
EQUAL PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE
MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING
THAT THE LAW DOES VIOLENCE TO THE POLICY OF
THE STATE TO PROTECT THE FAMILY AS A BASIC
SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN
UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner
against the constitutionality of R.A. 9262, we shall first tackle
the propriety of the dismissal by the appellate court of the
petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed
by petitioner.
As a general rule, the question of constitutionality must be
raised at the earliest opportunity so that if not raised in the
pleadings, ordinarily it may not be raised in the trial, and if not
raised in the trial court, it will not be considered on
appeal.39 Courts will not anticipate a question of constitutional
law in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A.
9262 before the RTC of Bacolod City, petitioner argues that
the Family Court has limited authority and jurisdiction that is
"inadequate to tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are
special courts, of the same level as Regional Trial Courts.
Under R.A. 8369, otherwise known as the "Family Courts Act
of 1997," family courts have exclusive original jurisdiction to
hear and decide cases of domestic violence against women and
children.42 In accordance with said law, the Supreme Court
designated from among the branches of the Regional Trial
Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law,
Section 7 of R.A. 9262 now provides that Regional Trial
Courts designated as Family Courts shall have original and
exclusive jurisdiction over cases of VAWC defined under the
latter law, viz:
15
SEC. 7. Venue. – The Regional Trial Court designated as a
Family Court shall have original and exclusive jurisdiction
over cases of violence against women and their children under
this law. In the absence of such court in the place where the
offense was committed, the case shall be filed in the Regional
Trial Court where the crime or any of its elements was
committed at the option of the complainant. (Emphasis
supplied)
Inspite of its designation as a family court, the RTC of
Bacolod City remains possessed of authority as a court of
general original jurisdiction to pass upon all kinds of cases
whether civil, criminal, special proceedings, land registration,
guardianship, naturalization, admiralty or insolvency. 44 It is
settled that RTCs have jurisdiction to resolve the
constitutionality of a statute,45 "this authority being embraced
in the general definition of the judicial power to determine
what are the valid and binding laws by the criterion of their
conformity to the fundamental law." 46 The Constitution vests
the power of judicial review or the power to declare the
constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction,
ordinance, or regulation not only in this Court, but in all
RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that,
"plainly the Constitution contemplates that the inferior courts
should have jurisdiction in cases involving constitutionality of
any treaty or law, for it speaks of appellate review of final
judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article
VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or
regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of
constitutionality of R.A. 9262 could have been raised at the
earliest opportunity in his Opposition to the petition for
protection order before the RTC of Bacolod City, which had
jurisdiction to determine the same, subject to the review of this
Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence
Against Women and Their Children, lays down a new kind of
procedure requiring the respondent to file an opposition to the
petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file
an opposition to the petition which he himself shall verify. It
must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order
should not be issued.
(b) Respondent shall not include in the opposition any
counterclaim, cross-claim or third-party complaint, but any
cause of action which could be the subject thereof may be
litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that,
since a counterclaim, cross-claim and third-party complaint
are to be excluded from the opposition, the issue of
constitutionality cannot likewise be raised therein. A
counterclaim is defined as any claim for money or other relief
which a defending party may have against an opposing
party.50 A cross-claim, on the other hand, is any claim by one
party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original
action or of a counterclaim therein.51Finally, a third-party
complaint is a claim that a defending party may, with leave of
court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in
respect of his opponent's claim.52 As pointed out by Justice
Teresita J. Leonardo-De Castro, the unconstitutionality of a
statute is not a cause of action that could be the subject of a
counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the
opposition in view of the familiar maxim expressio unius est
exclusio alterius.
Moreover, it cannot be denied that this issue affects the
resolution of the case a quo because the right of private
respondent to a protection order is founded solely on the very
statute the validity of which is being attacked53 by petitioner
who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262
is, for all intents and purposes, a valid cause for the non-
issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in
nature should not have deterred petitioner from raising the
same in his Opposition. The question relative to the
constitutionality of a statute is one of law which does not need
to be supported by evidence.54 Be that as it may, Section 25 of
A.M. No. 04-10-11-SC nonetheless allows the conduct of a
hearing to determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court
determines the need for further hearing, it may issue an order
containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that
have been marked and will be presented;
16
 (d) Names of witnesses who will be ordered to
present their direct testimonies in the form of
affidavits; and
(e) Schedule of the presentation of evidence by both
parties which shall be done in one day, to the extent
possible, within the 30-day period of the effectivity
of the temporary protection order issued. (Emphasis
supplied)
To obviate potential dangers that may arise concomitant to the
conduct of a hearing when necessary, Section 26 (b) of A.M.
No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the
said order for a period of thirty (30) days each time until final
judgment is rendered. It may likewise modify the extended or
renewed temporary protection order as may be necessary to
meet the needs of the parties. With the private respondent
given ample protection, petitioner could proceed to litigate the
constitutional issues, without necessarily running afoul of the
very purpose for the adoption of the rules on summary
procedure.
In view of all the foregoing, the appellate court correctly
dismissed the petition for prohibition with prayer for
injunction and temporary restraining order (CA-G.R. CEB -
SP. No. 01698). Petitioner may have proceeded upon an
honest belief that if he finds succor in a superior court, he
could be granted an injunctive relief. However, Section 22(j)
of A.M. No. 04-10-11-SC expressly disallows the filing of a
petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence, the 60-day
TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders
pursuant thereto was improper, and it effectively hindered the
case from taking its normal course in an expeditious and
summary manner.
As the rules stand, a review of the case by appeal or certiorari
before judgment is prohibited. Moreover, if the appeal of a
judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid
only for thirty (30) days at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or
invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of
the United States declared, thus:
Federal injunctions against state criminal statutes, either in
their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even
if such statutes are unconstitutional. No citizen or member of
the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a
prosecution even though alleged to be unauthorized and,
hence, unlawful is not alone ground for relief in equity which
exerts its extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo
until the trial court hears fully the merits of the case. It bears
stressing, however, that protection orders are granted ex parte
so as to protect women and their children from acts of
violence. To issue an injunction against such orders will defeat
the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk
from our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and
again, discharged our solemn duty as final arbiter of
constitutional issues, and with more reason now, in view of
private respondent's plea in her Comment59 to the instant
Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent
and criminalize spousal and child abuse, which could very
well be committed by either the husband or the wife, gender
alone is not enough basis to deprive the husband/father of the
remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No.
2723,61 which became R.A. 9262, reveals that while the
sponsor, Senator Luisa Pimentel-Ejercito (better known as
Senator Loi Estrada), had originally proposed what she called
a "synthesized measure"62 – an amalgamation of two
measures, namely, the "Anti-Domestic Violence Act" and the
"Anti-Abuse of Women in Intimate Relationships Act" 63 –
providing protection to "all family members, leaving no one in
isolation" but at the same time giving special attention to
women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be
denied protection under the same measure. We quote pertinent
portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr.
President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members
of the household, including children or the husband, they fear
that this would weaken the efforts to address domestic
violence of which the main victims or the bulk of the victims
really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does
the good Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of
women who call themselves "WIIR" Women in Intimate
Relationship. They do not want to include men in this
domestic violence. But plenty of men are also being abused by
women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective
measures for victims. This includes the men, children, live-in,
common-law wives, and those related with the family.65
17
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the
discussion whether to limit this to women and not to families
which was the issue of the AWIR group. The understanding
that I have is that we would be having a broader scope rather
than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan
during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of
the measure. Do not get me wrong. However, I believe that
there is a need to protect women's rights especially in the
domestic environment.
As I said earlier, there are nameless, countless, voiceless
women who have not had the opportunity to file a case against
their spouses, their live-in partners after years, if not decade,
of battery and abuse. If we broaden the scope to include even
the men, assuming they can at all be abused by the women or
their spouses, then it would not equalize the already difficult
situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations,
concurs with this position. I am sure that the men in this
Chamber who love their women in their lives so dearly will
agree with this representation. Whether we like it or not, it is
an unequal world. Whether we like it or not, no matter how
empowered the women are, we are not given equal
opportunities especially in the domestic environment where
the macho Filipino man would always feel that he is stronger,
more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the
committee came up with this bill because the family members
have been included in this proposed measure since the other
members of the family other than women are also possible
victims of violence. While women are most likely the intended
victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases,
men also stand to be victimized and that children are almost
always the helpless victims of violence. I am worried that
there may not be enough protection extended to other family
members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses
the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said
law.
I am aware that some groups are apprehensive about granting
the same protection to men, fearing that they may use this law
to justify their abusive behavior against women. However, we
should also recognize that there are established procedures and
standards in our courts which give credence to evidentiary
support and cannot just arbitrarily and whimsically entertain
baseless complaints.
Mr. President, this measure is intended to harmonize family
relations and to protect the family as the basic social
institution. Though I recognize the unequal power relations
between men and women in our society, I believe we have an
obligation to uphold inherent rights and dignity of both
husband and wife and their immediate family members,
particularly children.
While I prefer to focus mainly on women, I was compelled to
include other family members as a critical input arrived at
after a series of consultations/meetings with various NGOs,
experts, sports groups and other affected sectors, Mr.
President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the
other senators.
Senator Sotto. Yes, with the permission of the two ladies on
the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
recognized.
Senator Sotto. I presume that the effect of the proposed
amendment of Senator Legarda would be removing the "men
and children" in this particular bill and focus specifically on
women alone. That will be the net effect of that proposed
amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am
not sure now whether she is inclined to accept the proposed
amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not
because if she is going to accept this, I will propose an
amendment to the amendment rather than object to the
amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
18
xxxx
Senator Sotto. x x x May I propose an amendment to the
amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the
rationale used by the distinguished proponent of the
amendment. As a matter of fact, I tend to agree. Kung may
maaabuso, mas malamang iyong babae kaysa sa lalake. At
saka iyong mga lalake, puwede na talagang magulpi iyan.
Okey lang iyan. But I cannot agree that we remove the
children from this particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very
much abused. As a matter of fact, it is not limited to minors.
The abuse is not limited to seven, six, 5-year-old children. I
have seen 14, 15-year-old children being abused by their
fathers, even by their mothers. And it breaks my heart to find
out about these things.
Because of the inadequate existing law on abuse of children,
this particular measure will update that. It will enhance and
hopefully prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove
the aspect of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority
Leader.
The President Pro Tempore. Effectively then, it will be women
AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence]
There being none, the amendment, as amended, is approved. 66
It is settled that courts are not concerned with the wisdom,
justice, policy, or expediency of a statute.67 Hence, we dare
not venture into the real motivations and wisdom of the
members of Congress in limiting the protection against
violence and abuse under R.A. 9262 to women and children
only. No proper challenge on said grounds may be entertained
in this proceeding. Congress has made its choice and it is not
our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is
to seek its amendment or repeal by the legislative. By the
principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency
of any law.68 We only step in when there is a violation of the
Constitution. However, none was sufficiently shown in this
case.
R.A. 9262 does not violate the guaranty of equal protection of
the laws.
Equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope
Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty
of equality in the application of the laws upon all citizens of
the state. It is not, therefore, a requirement, in order to avoid
the constitutional prohibition against inequality, that every
man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according
to the circumstances surrounding them. It guarantees equality,
not identity of rights. The Constitution does not require that
things which are different in fact be treated in law as though
they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to
operate.
The equal protection of the laws clause of the Constitution
allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification
should be based on substantial distinctions which make for
real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification
or distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we
find that R.A. 9262 is based on a valid classification as shall
hereinafter be discussed and, as such, did not violate the equal
protection clause by favoring women over men as victims of
violence and abuse to whom the State extends its protection.
19
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the
fact that women are more likely than men to be victims of
violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the
classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of
true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the
National Machinery for Gender Equality and Women's
Empowerment), violence against women (VAW) is deemed to
be closely linked with the unequal power relationship between
women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are
the leaders, pursuers, providers, and take on dominant roles in
society while women are nurturers, men's companions and
supporters, and take on subordinate roles in society. This
perception leads to men gaining more power over women.
With power comes the need to control to retain that power.
And VAW is a form of men's expression of controlling
women to retain power.71
The United Nations, which has long recognized VAW as a
human rights issue, passed its Resolution 48/104 on the
Declaration on Elimination of Violence Against Women on
December 20, 1993 stating that "violence against women is a
manifestation of historically unequal power relations between
men and women, which have led to domination over and
discrimination against women by men and to the prevention of
the full advancement of women, and that violence against
women is one of the crucial social mechanisms by which
women are forced into subordinate positions, compared with
men."72
Then Chief Justice Reynato S. Puno traced the historical and
social context of gender-based violence and developments in
advocacies to eradicate VAW, in his remarks delivered during
the Joint Launching of R.A. 9262 and its Implementing Rules
last October 27, 2004, the pertinent portions of which are
quoted hereunder:
History reveals that most societies sanctioned the use of
violence against women. The patriarch of a family was
accorded the right to use force on members of the family
under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in
patriarchy – the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically
and intellectually. In ancient Western societies, women
whether slave, concubine or wife, were under the authority of
men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to
beat, or even kill, his wife if she endangered his property right
over her. Judaism, Christianity and other religions oriented
towards the patriarchal family strengthened the male
dominated structure of society.
English feudal law reinforced the tradition of male control
over women. Even the eminent Blackstone has been quoted in
his commentaries as saying husband and wife were one and
that one was the husband. However, in the late 1500s and
through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common
law developed the rule of thumb, which allowed husbands to
beat their wives with a rod or stick no thicker than their
thumb.
In the later part of the 19th century, legal recognition of these
rights to chastise wives or inflict corporeal punishment ceased.
Even then, the preservation of the family was given more
importance than preventing violence to women.
The metamorphosis of the law on violence in the United States
followed that of the English common law. In 1871, the
Supreme Court of Alabama became the first appellate court to
strike down the common law right of a husband to beat his
wife:
The privilege, ancient though it may be, to beat one's wife
with a stick, to pull her hair, choke her, spit in her face or kick
her about the floor, or to inflict upon her like indignities, is not
now acknowledged by our law... In person, the wife is entitled
to the same protection of the law that the husband can invoke
for himself.
As time marched on, the women's advocacy movement
became more organized. The temperance leagues initiated it.
These leagues had a simple focus. They considered the evils of
alcoholism as the root cause of wife abuse. Hence, they
demonstrated and picketed saloons, bars and their husbands'
other watering holes. Soon, however, their crusade was joined
by suffragette movements, expanding the liberation
movement's agenda. They fought for women's right to vote, to
own property, and more. Since then, the feminist movement
was on the roll.
The feminist movement exposed the private invisibility of the
domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No
less than the United States Supreme Court, in 1992 case
Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately
two million women are the victims of severe assaults by their
male partners. In a 1985 survey, women reported that nearly
one of every eight husbands had assaulted their wives during
the past year. The [American Medical Association] views
these figures as "marked underestimates," because the nature
of these incidents discourages women from reporting them,
and because surveys typically exclude the very poor, those
who do not speak English well, and women who are homeless
or in institutions or hospitals when the survey is conducted.
20
According to the AMA, "researchers on family violence agree
that the true incidence of partner violence is probably double
the above estimates; or four million severely assaulted women
per year."
Studies on prevalence suggest that from one-fifth to one-third
of all women will be physically assaulted by a partner or ex-
partner during their lifetime... Thus on an average day in the
United States, nearly 11,000 women are severely assaulted by
their male partners. Many of these incidents involve sexual
assault... In families where wife beating takes place, moreover,
child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical
violence is only the most visible form of abuse. Psychological
abuse, particularly forced social and economic isolation of
women, is also common.
Many victims of domestic violence remain with their abusers,
perhaps because they perceive no superior alternative...Many
abused women who find temporary refuge in shelters return to
their husbands, in large part because they have no other source
of income... Returning to one's abuser can be dangerous.
Recent Federal Bureau of Investigation statistics disclose that
8.8 percent of all homicide victims in the United States are
killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.
Finally in 1994, the United States Congress enacted the
Violence Against Women Act.
In the International front, the women's struggle for equality
was no less successful. The United States Charter and the
Universal Declaration of Human Rights affirmed the equality
of all human beings. In 1979, the UN General Assembly
adopted the landmark Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW). In 1993,
the UN General Assembly also adopted the Declaration on the
Elimination of Violence Against Women. World conferences
on the role and rights of women have been regularly held in
Mexico City, Copenhagen, Nairobi and Beijing. The UN itself
established a Commission on the Status of Women.
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
Reported
2004 2005 2006
Cases
Rape 997 927 659
Incestuous
38 46 26
Rape
Attempted
194 148 185
Rape
The Philippines has been in cadence with the half – and full –
steps of all these women's movements. No less than Section
14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure
the fundamental equality before the law of women and men.
Our Senate has ratified the CEDAW as well as the Convention
on the Rights of the Child and its two protocols. To cap it all,
Congress, on March 8, 2004, enacted Rep. Act No. 9262,
entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims,
Prescribing Penalties therefor and for other Purposes."
(Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723,
official statistics on violence against women and children
show that –
x x x physical injuries had the highest number of cases at
5,058 in 2002 representing 55.63% of total cases reported
(9,903). And for the first semester of 2003, there were 2,381
reported cases out of 4,354 cases which represent 54.31%. xxx
(T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare
and Development (DSWD) for the year 2002, there are 1,417
physically abused/maltreated cases out of the total of 5,608
cases. xxx (T)here are 1,091 DSWD cases out of a total
number of 3,471 cases for the first semester of 2003. Female
violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their
husbands and live-in partners.73
Recently, the Philippine Commission on Women presented
comparative statistics on violence against women across an
eight-year period from 2004 to August of 2011 with violations
under R.A. 9262 ranking first among the different VAW
categories since its implementation in 2004,74 thus:
2007 2008 2009 2010 2011
837 811 770 1,042 832
22 28 27 19 23
147 204 167 268 201
21
 Acts of
580 536 382 358 445 485 745 625
Lasciviousness

Physical
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Injuries

Sexual
53 37 38 46 18 54 83 63
Harassment

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children
Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on
domestic abuse and violence against men in the Philippines
because incidents thereof are relatively low and, perhaps,
because many men will not even attempt to report the
situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or
more) times, compared with 11% of the smaller number of
men who had ever experienced domestic violence; and women
constituted 89% of all those who had experienced 4 or more
incidents of domestic violence.75 Statistics in Canada show
that spousal violence by a woman against a man is less likely
to cause injury than the other way around (18 percent versus
44 percent). Men, who experience violence from their spouses
are much less likely to live in fear of violence at the hands of
their spouses, and much less likely to experience sexual
assault. In fact, many cases of physical violence by a woman
against a spouse are in self-defense or the result of many years
of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and
abuse perpetrated against men in the Philippines, the same
cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance
requiring drivers of animal-drawn vehicles to pick up, gather
and deposit in receptacles the manure emitted or discharged by
their vehicle-drawing animals in any public highways, streets,
plazas, parks or alleys, said ordinance was challenged as
violative of the guaranty of equal protection of laws as its
application is limited to owners and drivers of vehicle-drawing
22
animals and not to those animals, although not utilized, but
similarly pass through the same streets.
The ordinance was upheld as a valid classification for the
reason that, while there may be non-vehicle-drawing animals
that also traverse the city roads, "but their number must be
negligible and their appearance therein merely occasional,
compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that
the legislative classification may result in actual inequality is
not violative of the right to equal protection, for every
classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby
rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial,
and sentencing, crimes against women are often treated
differently and less seriously than other crimes. This was
argued by then United States Senator Joseph R. Biden, Jr.,
now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as
a valid exercise of the U.S. Congress' authority under the
Commerce and Equal Protection Clauses. He stressed that the
widespread gender bias in the U.S. has institutionalized
historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" – first at
the hands of the offender and then of the legal system. 79
Our own Senator Loi Estrada lamented in her Sponsorship
Speech for Senate Bill No. 2723 that "(w)henever violence
occurs in the family, the police treat it as a private matter and
advise the parties to settle the conflict themselves. Once the
complainant brings the case to the prosecutor, the latter is
hesitant to file the complaint for fear that it might later be
withdrawn. This lack of response or reluctance to be involved
by the police and prosecution reinforces the escalating,
recurring and often serious nature of domestic violence." 80
Sadly, our own courts, as well, have exhibited prejudices and
biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC
Judge Venancio J. Amila for Conduct Unbecoming of a Judge.
He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262,
calling her as "only a live-in partner" and presenting her as an
"opportunist" and a "mistress" in an "illegitimate relationship."
Judge Amila even called her a "prostitute," and accused her of
being motivated by "insatiable greed" and of absconding with
the contested property.81 Such remarks betrayed Judge Amila's
prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the
discrimination brought about by biases and prejudices against
women. As emphasized by the CEDAW Committee on the
Elimination of Discrimination against Women, addressing or
correcting discrimination through specific measures focused
on women does not discriminate against men.82 Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and
that it is an "anti-male," "husband-bashing," and "hate-men"
law deserves scant consideration. As a State Party to the
CEDAW, the Philippines bound itself to take all appropriate
measures "to modify the social and cultural patterns of
conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority
of either of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that "(t)he
paradigm shift changing the character of domestic violence
from a private affair to a public offense will require the
development of a distinct mindset on the part of the police, the
prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the
purpose of R.A. 9262, which is to address violence committed
against women and children, spelled out in its Declaration of
Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the
State values the dignity of women and children and guarantees
full respect for human rights. The State also recognizes the
need to protect the family and its members particularly women
and children, from violence and threats to their personal safety
and security.
Towards this end, the State shall exert efforts to address
violence committed against women and children in keeping
with the fundamental freedoms guaranteed under the
Constitution and the provisions of the Universal Declaration
of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the
Rights of the Child and other international human rights
instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW,
which the Philippines ratified on August 5, 1981.
Subsequently, the Optional Protocol to the CEDAW was also
ratified by the Philippines on October 6, 2003.86 This
Convention mandates that State parties shall accord to women
equality with men before the law87 and shall take all
appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations
on the basis of equality of men and women.88 The Philippines
likewise ratified the Convention on the Rights of the Child and
its two protocols.89 It is, thus, bound by said Conventions and
their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the
existing conditions when it was promulgated, but to future
conditions as well, for as long as the safety and security of
23
women and their children are threatened by violence and
abuse.
R.A. 9262 applies equally to all women and children who
suffer violence and abuse. Section 3 thereof defines VAWC
as:
x x x any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against
her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty. It includes, but
is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or
physical harm;
B. "Sexual violence" refers to an act which is sexual in nature,
committed against a woman or her child. It includes, but is not
limited to:
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or her
child as a sex object, making demeaning and
sexually suggestive remarks, physically
attacking the sexual parts of the victim's
body, forcing her/him to watch obscene
publications and indecent shows or forcing
the woman or her child to do indecent acts
and/or make films thereof, forcing the wife
and mistress/lover to live in the conjugal
home or sleep together in the same room
with the abuser;
b) acts causing or attempting to cause the
victim to engage in any sexual activity by
force, threat of force, physical or other harm
or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering of the
victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or humiliation,
repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual
or psychological abuse of a member of the family to which the
victim belongs, or to witness pornography in any form or to
witness abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation of
common children.
D. "Economic abuse" refers to acts that make or attempt to
make a woman financially dependent which includes, but is
not limited to the following:
1. withdrawal of financial support or
preventing the victim from engaging in any
legitimate profession, occupation, business
or activity, except in cases wherein the other
spouse/partner objects on valid, serious and
moral grounds as defined in Article 73 of the
Family Code;
2. deprivation or threat of deprivation of
financial resources and the right to the use
and enjoyment of the conjugal, community
or property owned in common;
3. destroying household property;
4. controlling the victims' own money or
properties or solely controlling the conjugal
money or properties.
It should be stressed that the acts enumerated in the
aforequoted provision are attributable to research that has
exposed the dimensions and dynamics of battery. The acts
described here are also found in the U.N. Declaration on the
Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what
constitutes abuse removes the difference between violent
action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and
ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate
contrast between the innocent and the prohibited acts. They
are worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is
prohibited, and need not guess at its meaning nor differ in its
application.91 Yet, petitioner insists92 that phrases like
"depriving or threatening to deprive the woman or her child of
a legal right," "solely controlling the conjugal or common
money or properties," "marital infidelity," and "causing mental
or emotional anguish" are so vague that they make every
quarrel a case of spousal abuse. However, we have stressed
that the "vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld – not absolute
precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are
clearly delineated. An act will not be held invalid merely
because it might have been more explicit in its wordings or
detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262
singles out the husband or father as the culprit. As defined
above, VAWC may likewise be committed "against a woman
with whom the person has or had a sexual or dating
relationship." Clearly, the use of the gender-neutral word
24
"person" who has or had a sexual or dating relationship with
the woman encompasses even lesbian relationships. Moreover,
while the law provides that the offender be related or
connected to the victim by marriage, former marriage, or a
sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised
Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the
victim, were held to be proper respondents in the case filed by
the latter upon the allegation that they and their son (Go-Tan's
husband) had community of design and purpose in tormenting
her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and
physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in
the issuance of POs, of all protections afforded by the due
process clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to
respond, the husband is stripped of family, property, guns,
money, children, job, future employment and reputation, all in
a matter of seconds, without an inkling of what happened."95
A protection order is an order issued to prevent further acts of
violence against women and their children, their family or
household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm,
minimize any disruption in their daily life and facilitate the
opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to
ensure that the victim or offended party is afforded all the
remedies necessary to curtail access by a perpetrator to the
victim. This serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated family or
household member safety in the family residence, and to
prevent the perpetrator from committing acts that jeopardize
the employment and support of the victim. It also enables the
court to award temporary custody of minor children to protect
the children from violence, to prevent their abduction by the
perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in
writing, signed and verified by the petitioner98 thereby
undertaking full responsibility, criminal or civil, for every
allegation therein. Since "time is of the essence in cases of
VAWC if further violence is to be prevented," 99 the court is
authorized to issue ex parte a TPO after raffle but before
notice and hearing when the life, limb or property of the
victim is in jeopardy and there is reasonable ground to believe
that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such
violence, which is about to recur.100
There need not be any fear that the judge may have no rational
basis to issue an ex parte order. The victim is required not only
to verify the allegations in the petition, but also to attach her
witnesses' affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged
as violative of the right to due process. Just like a writ of
preliminary attachment which is issued without notice and
hearing because the time in which the hearing will take could
be enough to enable the defendant to abscond or dispose of his
property,102 in the same way, the victim of VAWC may
already have suffered harrowing experiences in the hands of
her tormentor, and possibly even death, if notice and hearing
were required before such acts could be prevented. It is a
constitutional commonplace that the ordinary requirements of
procedural due process must yield to the necessities of
protecting vital public interests,103 among which is protection
of women and children from violence and threats to their
personal safety and security.
It should be pointed out that when the TPO is issued ex parte,
the court shall likewise order that notice be immediately given
to the respondent directing him to file an opposition within
five (5) days from service. Moreover, the court shall order that
notice, copies of the petition and TPO be served immediately
on the respondent by the court sheriffs. The TPOs are initially
effective for thirty (30) days from service on the respondent. 104
Where no TPO is issued ex parte, the court will nonetheless
order the immediate issuance and service of the notice upon
the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the
preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105
The opposition to the petition which the respondent himself
shall verify, must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or permanent
protection order should not be issued.106
It is clear from the foregoing rules that the respondent of a
petition for protection order should be apprised of the charges
imputed to him and afforded an opportunity to present his
side. Thus, the fear of petitioner of being "stripped of family,
property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of
what happened" is a mere product of an overactive
imagination. The essence of due process is to be found in the
reasonable opportunity to be heard and submit any evidence
one may have in support of one's defense. "To be heard" does
not only mean verbal arguments in court; one may be heard
also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no
denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an
Opposition to the Urgent Ex-Parte Motion for Renewal of the
TPO that was granted only two days earlier on April 24, 2006.
Likewise, on May 23, 2006, petitioner filed a motion for the
25
modification of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated September 26,
2006, gave him five days (5) within which to show cause why
the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an
"exercise in futility," conveniently forgetting that the renewal
of the questioned TPO was only for a limited period (30 days)
each time, and that he could prevent the continued renewal of
said order if he can show sufficient cause therefor. Having
failed to do so, petitioner may not now be heard to complain
that he was denied due process of law.
Petitioner next laments that the removal and exclusion of the
respondent in the VAWC case from the residence of the
victim, regardless of ownership of the residence, is virtually a
"blank check" issued to the wife to claim any property as her
conjugal home.108
The wording of the pertinent rule, however, does not by any
stretch of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The
protection order shall include any, some or all of the following
reliefs:
xxxx
(c) Removing and excluding the respondent from the
residence of the offended party, regardless of ownership of the
residence, either temporarily for the purpose of protecting the
offended party, or permanently where no property rights are
violated. If the respondent must remove personal effects from
the residence, the court shall direct a law enforcement agent to
accompany the respondent to the residence, remain there until
the respondent has gathered his things and escort him from the
residence;
xxxx
Indubitably, petitioner may be removed and excluded from
private respondent's residence, regardless of ownership, only
temporarily for the purpose of protecting the latter. Such
removal and exclusion may be permanent only where no
property rights are violated. How then can the private
respondent just claim any property and appropriate it for
herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill
arguments, instead of encouraging mediation and counseling,
the law has done violence to the avowed policy of the State to
"protect and strengthen the family as a basic autonomous
social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall
not refer the case or any issue thereof to a mediator. The
reason behind this provision is well-explained by the
Commentary on Section 311 of the Model Code on Domestic
and Family Violence as follows:110
This section prohibits a court from ordering or referring
parties to mediation in a proceeding for an order for
protection. Mediation is a process by which parties in
equivalent bargaining positions voluntarily reach consensual
agreement about the issue at hand. Violence, however, is not a
subject for compromise. A process which involves parties
mediating the issue of violence implies that the victim is
somehow at fault. In addition, mediation of issues in a
proceeding for an order of protection is problematic because
the petitioner is frequently unable to participate equally with
the person against whom the protection order has been sought.
(Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise
of judicial power which, under the Constitution, is placed
upon the "Supreme Court and such other lower courts as may
be established by law" and, thus, protests the delegation of
power to barangay officials to issue protection orders. 111 The
pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue
and How. – Barangay Protection Orders (BPOs) refer to the
protection order issued by the Punong Barangay ordering the
perpetrator to desist from committing acts under Section 5 (a)
and (b) of this Act.1âwphi1 A Punong Barangay who receives
applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of
the basis of the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the application
shall be acted upon by any available Barangay Kagawad. If
the BPO is issued by a Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay Kagawad that
the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15)
days. Immediately after the issuance of an ex parte BPO, the
Punong Barangay or Barangay Kagawad shall personally
serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in
any proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand,
executive power "is generally defined as the power to enforce
and administer the laws. It is the power of carrying the laws
into practical operation and enforcing their due
observance."113
26
As clearly delimited by the aforequoted provision, the BPO
issued by the Punong Barangay or, in his unavailability, by
any available Barangay Kagawad, merely orders the
perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the woman or
her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of
his duty under the Local Government Code to "enforce all
laws and ordinances," and to "maintain public order in the
barangay."114
that one of its most difficult struggles was the fight against the
violence of law itself. If we keep that in mind, law will not
again be a hindrance to the struggle of women for equality but
will be its fulfillment."118Accordingly, the constitutionality of
R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is
hereby DENIED for lack of merit.
SO ORDERED.

We have held that "(t)he mere fact that an officer is required

Footnotes
by law to inquire into the existence of certain facts and to
apply the law thereto in order to determine what his official *
conduct shall be and the fact that these acts may affect private On official leave.
rights do not constitute an exercise of judicial powers." 115
1
"Philippines still top Christian country in Asia, 5th
In the same manner as the public prosecutor ascertains through in world," Philippine Daily Inquirer, December 21,
a preliminary inquiry or proceeding "whether there is 2011.
reasonable ground to believe that an offense has been
2
committed and the accused is probably guilty thereof," the Ephesians 5:25-28.
Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the 3
RATIONALE OF THE PROPOSED RULE ON
woman and her children exists or is about to recur that would VIOLENCE AGAINST WOMEN AND THEIR
necessitate the issuance of a BPO. The preliminary CHILDREN, citing statistics furnished by the
investigation conducted by the prosecutor is, concededly, an National Commission on the Role of Filipino
executive, not a judicial, function. The same holds true with Women.
the issuance of a BPO.
4
Id.
We need not even belabor the issue raised by petitioner that
since barangay officials and other law enforcement agencies 5
Section 3(a), R.A. 9262.
are required to extend assistance to victims of violence and
abuse, it would be very unlikely that they would remain 6
Rollo, pp. 63-83.
objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and 7
other law enforcement agencies is consistent with their duty to Id. at 66-67.
enforce the law and to maintain peace and order.
8
Id. at 64.
Conclusion
9
Id. at 67-68.
Before a statute or its provisions duly challenged are voided,
10
an unequivocal breach of, or a clear conflict with the Id. at 68-70.
Constitution, not merely a doubtful or argumentative one,
must be demonstrated in such a manner as to leave no doubt in 11
Id. at 70-71.
the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, 12
Id. at 72.
however, no concrete evidence and convincing arguments
were presented by petitioner to warrant a declaration of the 13
unconstitutionality of R.A. 9262, which is an act of Congress Id. at 73.
and signed into law by the highest officer of the co-equal
14
executive department. As we said in Estrada v. Id. at 74.
Sandiganbayan, 117 courts must assume that the legislature is
ever conscious of the borders and edges of its plenary powers, 15
Id. at 65-66.
and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare 16
Id. at 66.
of the majority.
17
Id. at 70.
We reiterate here Justice Puno's observation that "the history
of the women's movement against domestic violence shows 18
Id. at 84-87.
27
19 42
Urgent Ex-Parte Motion for Renewal of Temporary SEC. 5. Jurisdiction of Family Courts. - The
Protection Order (TPO) or Issuance of Modified Family Courts shall have exclusive original
TPO. Id. at 90-93. jurisdiction to hear and decide the following cases:

20
Id. at 94-97. xxxx

21
Id. at 98-103. k) Cases of domestic violence against:

22
Id. at 138-140. 1) Women - which are acts of gender based
violence that results, or are likely to result in
23
Order dated May 24, 2006. Id. at 148-149. physical, sexual or psychological harm or
suffering to women; and other forms of
24 physical abuse such as battering or threats
Id. at 154-166.
and coercion which violate a woman's
25
personhood, integrity and freedom
Id. at 156. movement; and
26
Id. at 157. 2) Children - which include the commission
of all forms of abuse, neglect, cruelty,
27
Id. at 158-159. exploitation, violence, and discrimination
and all other conditions prejudicial to their
28 development.
Id. at 167-174.

29 43
Id. at 182. Sec. 17, R.A. 8369.

30 44
Id. at 183-184. Manalo v. Mariano, 161 Phil. 108, 120 (1976).

31 45
Id. at 185. Planters Products, Inc. v. Fertiphil Corporation,
G.R. No. 166006, March 14, 2008, 548 SCRA 485,
32
Id. at 186-187. 504.

46
33
See Manifestation dated October 10, 2006. Id. at Drilon v. Lim, G.R. No. 112497, August 4, 1994,
188-189. 235 SCRA 135, 140.

47
34
Id. at 104-137. Planters Products, Inc. v. Fertiphil Corporation,
supra note 45, at 505, citing Mirasol v. CA, 403 Phil.
35 760 (2001).
Id. at 151-152.
48
36 G.R. Nos. L-18128 & L-18672, December 26,
Decision dated January 24, 2007. Penned by
1961, 3 SCRA 696, 703-704.
Associate Justice Priscilla Baltazar-Padilla, with
Associate Justices Arsenio J. Magpale and Romeo F. 49
Barza, concurring. Id. at 47-57. RATIONALE OF THE PROPOSED RULES ON
VIOLENCE AGAINST WOMEN AND THEIR
37 CHILDREN.
Id. at 60-61.
50
38 Korea Exchange Bank v. Hon. Rogelio C.
Petition, id. at 22.
Gonzales, 496 Phil. 127, 143-144 (2005); Spouses
Sapugay v. CA, 262 Phil. 506, 513 (1990).
39
ABS-CBN Broadcasting Corporation v. Philippine
Multi-Media System, Inc., G.R. Nos. 175769-70, 51
Sec. 8, Rule 6, 1997 Rules of Civil Procedure.
January 19, 2009, 576 SCRA 262, 289.
52
40 Sec. 11, Rule 6, 1997 Rules of Civil Procedure.
Philippine National Bank v. Palma, 503 Phil. 917,
932 (2005). 53
See People of the Philippine Islands and Hongkong
41 & Shanghai Banking Corporation v. Vera, 65 Phil
Petition, rollo, p. 24.
199 (1937); Philippine Coconut Producers

28
 72
Federation, Inc. (COCOFED) v. Republic, G.R. Nos. <http://www.lawphil.net/international/treaties/dec_
177857-58, January 24, 2012, 663 SCRA 514, 594. dec_1993.html> (visited November 16, 2012).

54 73
Recreation and Amusement Association of the As reported by Senator Loi Estrada in her
Philippines v. City of Manila, 100 Phil 950, 956 Sponsorship Speech, Congressional Records, Vol. III,
(1957). No. 45, December 10, 2003, p. 22.

55 74
Secs. 22 and 31, A.M. No. 04-10-11-SC. Philippine Commission on Women, "Statistics on
Violence Against Filipino Women,"
56
Sec. 26 (b), A.M. No. 04-10-11-SC. <http://pcw.gov.ph/statistics/201210/statistics-
violence-against-filipino-women> (visited October
57
Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102 12, 2012).
(1980).
75
Women's Aid, "Who are the victims of domestic
58 violence?," citing Walby and Allen, 2004,
27 L.Ed.2d 669 (1971), cited in The Executive
<www.womensaid.org.uk/domestic-violence-
Secretary v. Court of Appeals, 473 Phil. 27, 56-57
(2004). articles.asp?
section=00010001002200410001&itemid= 1273
59
(visited November 16, 2012).
Rollo, pp. 214-240, 237.
76
60
Toronto District School Board, Facts and Statistics
Petition, id. at 26-27. <www.tdsb.on.ca/site/viewitem.asp?siteid=15&
menuid=23082&pageid=20007> (visited November
61
An Act Defining Violence Against Women and 16, 2012).
Members of the Family, Prescribing Penalties
Therefor, Providing for Protective Measures for 77
People v. Solon, 110 Phil. 39, 41 (1960).
Victims and for Other Purposes.
78
62
Victoriano v. Elizalde Rope Workers' Union, supra
Congressional Records, Vol. III, No. 45, December note 69, 90.
10, 2003, p. 27.
79
63
Biden, Jr., Joseph R., "The Civil Rights Remedy of
Id. at 25. the Violence Against Women Act: A Defense," 37
Harvard Journal on Legislation 1 (Winter, 2000).
64
Id. at 27.
80
Congressional Records, Vol. III, No. 45, December
65
Id. at 43-44. 10, 2003, pp. 22-23.

66
Congressional Records, Vol. III, No. 51, January 81
Benancillo v. Amila, A.M. No. RTJ-08-2149,
14, 2004, pp. 141-147. March 9, 2011, 645 SCRA 1, 8.

67
Lawyers Against Monopoly and Poverty (LAMP) 82
"General recommendation No. 25, on article 4,
v. The Secretary of Budget and Management, G.R. paragraph 1, of the Convention on the Elimination of
No. 164987, April 24, 2012, 670 SCRA 373, 391. All Forms of Discrimination against Women, on
temporary special measures"
68
Garcia v. Commission on Elections, G.R. No.
111511, October 5, 1993, 227 SCRA 100, 113-114. <www.un.org/womenwatch/.../recommendation>
(visited January 4, 2013).
69
158 Phil. 60, 86-87 (1974).
83
Petition, rollo, p. 27.
70
Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, p. 169. 84
Article 5(a), CEDAW.

71
Philippine Commission on Women, National
Machinery for Gender Equality and Women's
Empowerment, "Violence Against Women (VAW),"
<http://www.pcw.gov.ph> (visited November 16,
2012).
85
"The Rule on Violence Against Women and Their
Children," Remarks delivered during the Joint
Launching of R.A. 9262 and its Implementing Rules
last October 27, 2004 at the Session Hall of the
Supreme Court.

29
86 110
Supra note 49. Supra note 49.

87 111
Article 15. Petition, rollo, pp. 130-131.

88 112
Article 16. Sec. 1, Article VIII, 1987 Constitution.

89 113
Supra note 49. Laurel v. Desierto, 430 Phil. 658 (2002).

90 114
Supra note 49. People v. Tomaquin, 478 Phil. 885, 899 (2004),
citing Section 389, Chapter 3, Title One, Book III,
91
Estrada v. Sandiganbayan, 421 Phil 290, 351-352 Local Government Code of 1991, as amended.
(2001).
115
Lovina and Montilla v. Moreno and Yonzon, 118
92
Petition, rollo, p. 35. Phil 1401, 1406 (1963).

116
93
Estrada v. Sandiganbayan , supra note 91, at 352- Hacienda Luisita, Incorporated v. Presidential
353. Agrarian Reform Council, G.R. No. 171101, July 5,
2011, 653 SCRA 154, 258.
94
G.R. No. 168852, September 30, 2008, 567 SCRA
117
231. Supra note 91.

118
95
Petition, rollo, p. 31. Supra note 85.

96
Sec. 4 (o), A.M. No. 04-10-11-SC.

97
Supra note 49.

98
Sec. 7, A.M. No. 04-10-11-SC.

99
Supra note 49.

100
Id.

101
Supra note 85.

102
Cuartero v. CA, G.R. No. 102448, August 5,
1992, 212 SCRA 260, 265.

103
Laguna Lake Development Authority v. Court of
Appeals, G.R. No. 110120, March 16, 1994, 231
SCRA 292, 307, citing Pollution Adjudication Board
v. Court of Appeals, G.R. No. 93891, March 11,
1991, 195 SCRA 112.

104
Sec. 15, A.M. No. 04-10-11-SC.

105
Sec. 16, A.M. No. 04-10-11-SC.

106
Sec. 20, A.M. No. 04-10-11-SC.

107
Esperida v. Jurado, Jr., G.R. No. 172538, April 25,
2012, 671 SCRA 66, 74.

108
Petition, rollo, pp. 30-31.

109
Id. at 36.
30
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 166330 September 11, 2013
SMART COMMUNICATIONS, INC., Petitioner,
vs.
ARSENIO ALDECOA, JOSE B. TORRE, CONRADO U.
PUA, GREGORIO V. MANSANO, JERRY CORPUZ and
ESTELITAACOSTA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court filed by petitioner Smart
Communications, Inc., seeking the reversal of the
Decision1 dated July 16, 2004 and Resolution2 dated
December 9, 2004 of the Court of Appeals in CA-G.R. CV
No. 71337. The appellate court (I) reversed and set aside the
Order3 dated January 16, 2001 of the Regional Trial Court
(RTC), Branch 23, of Roxas, Isabela, in Civil Case No. Br. 23-
632-2000 dismissing the complaint for abatement of nuisance
and injunction against petitioner, and (2) entered a new
judgment declaring petitioner's cellular base station located in
Barangay Vira, Municipality of Roxas, Province of Isabela, a
nuisance and ordering petitioner to cease and desist from
operating the said cellular base station.
The instant Petition arose from the following facts:
Petitioner is a domestic corporation engaged in the
telecommunications business. On March 9, 2000, petitioner
entered into a contract of lease4 with Florentino Sebastian in
which the latter agreed to lease to the former a piece of vacant
lot, measuring around 300 square meters, located in Barangay
Vira, Roxas, Isabela (leased property).Petitioner, through its
contractor, Allarilla Construction, immediately constructed
and installed a cellular base station on the leased property.
Inside the cellular base station is a communications tower,
rising as high as150 feet, with antennas and transmitters; as
well as a power house open on three sides containing a
25KVA diesel power generator. Around and close to the
cellular base station are houses, hospitals, clinics, and
establishments, including the properties of respondents
Arsenio Aldecoa, Jose B. Torre, Conrado U. Pua, Gregorio V.
Mansano, Jerry Corpuz, and Estelita Acosta.
Respondents filed before the RTC on May 23, 2000 a
Complaint against petitioner for abatement of nuisance and
injunction with prayer for temporary restraining order and writ
of preliminary injunction, docketed as Civil Case No. Br. 23-
632-2000. Respondents alleged in their Complaint that:
5. Petitioner’s communications tower is 150 feet in
height equivalent to a 15-storey building. It is a
tripod-type tower made of tubular steel sections and
the last section, to which the huge and heavy
antenna/transponder array will be attached, about to
be bolted on. Weight of the antenna mast is estimated
at one (1) to three (3) tons, more or less. As designed,
the antenna/transponder array are held only by steel
bolts without support of guy wires;
6. This SMART tower is no different from the
Mobiline tower constructed at Reina Mercedes,
Isabela which collapsed during a typhoon that hit
Isabela in October 1998, an incident which is of
public knowledge;
7. With its structural design, SMART’s tower being
constructed at Vira, Roxas, Isabela, is weak, unstable,
and infirm, susceptible to collapse like the Mobiline
tower which fell during a typhoon as earlier alleged,
and its structural integrity being doubtful, and not
earthquake proof, this tower poses great danger to life
and limb of persons as well as their property,
particularly, the respondents whose houses a but, or
are near or within the periphery of the
communications tower;
8. This tower is powered by a standby generator that
emitsnoxious and deleterious fumes, not to mention
the constant noise it produces, hence, a hazard to the
health, not only of the respondents, but the residents
in the area as well;
9. When in operation, the tower would also pose
danger to the life and health of respondents and
residents of the barangay, especially children,
because of the ultra high frequency (UHF) radio
wave emissions it radiates. Only recently, Cable
News Network (CNN) reported that cell phones, with
minimal radiated power, are dangerous to children, so
more it is for this communications tower, whose
radiated power is thousands of times more than that
of a cellphone;
10. Worse, and in violation of law, petitioner
constructed the tower without the necessary public
hearing, permit of the barangay, as well as that of the
municipality, the Environmental Compliance
Certificate of the [Department of Environment and
Natural Resources (DENR)],construction permit, and
other requirements of the National
Telecommunications Commission (NTC), and in fact
committed fraud in its application by forging an
undated certification " that Barangay Vira does not
interpose any objection to the proposed construction
of a 150 ft. tower & site development, " as this
certification was never issued byrespondent Jose
Torre, the Barangay Captain of Vira, Roxas, Isabela,
and without the official barangay seal, attached as
Annex "A" and Certification of the Barangay Officer
31
of the Day that no public hearing was held, attached
as Annex "B" made integral part hereof;
11. Not being armed with the requisite
permits/authority as above mentioned, the
construction of the tower is illegal and should be
abated;
12. Respondents and petitioner should not wait for
the occurrence of death, injuries and damage on
account of this structure and judicial intervention is
needed to ensure that such event will not happen.5
Respondents thus prayed for the RTC to:
1. Issue a temporary restraining order and
after due hearing to issue a writ of
preliminary mandatory injunction;
2. Render judgment:
- Making the writ of preliminary
mandatory injunction permanent;
- Declaring the construction of the
SMART tower as a nuisance per se
or per accidens;
- Ordering the abatement of this
nuisance by ordering the removal
and/or demolition of petitioner’s
communication tower;
- Condemning petitioner to pay
respondents moral damages in the
sum of P150,000.00 and exemplary
damages in the sum of P30,000.00;
- Ordering petitioner to pay
attorney’s fees in the amount
of P20,000.00 plus trial honoraria
ofP1,000.00 for every appearance
in Court;
- Ordering petitioner to refund to
respondents litigation expenses in
the amount of not less
than P10,000.00;
3. And for such other reliefs as are just and
equitable in the premises.6
In its Answer/Motion to Oppose Temporary
Restraining Order with Compulsory
Counterclaim, petitioner raised the
following special and affirmative defenses:
13. Petitioner through its contractor,
Allarilla Construction(hereafter Allarilla),
applied for a Building Permit through the
office of Municipal engineer Virgilio A.
Batucal on 13 April 2000 and subsequently
received its approval 17 April 2000. (a copy
of the Official receipt and the Building
Permit is hereto attached respectively as
Annex "A" and "B" and made an integral
part hereof)
14. Petitioner, again through Allarilla
applied for an Environmental Compliance
Certificate (ECC) the approval of which, at
present, remains pending with the DENR-
[Environment Management Bureau (EMB)].
15. Petitioner should not in anyway be liable
for fraud or bad faith as it had painstakingly
secured the consent of majority of the
residents surrounding the location of the
Tower in order to seek their approval
therewith. (a copy of the list of residents
who consented there to is attached herewith
as Annex "C" and made an integral part
hereof)
16. Among the residents who signed the
consent list secured by petitioner include the
respondent Jose B. Torre and a certain
Linaflor Aldecoa, who is related to
respondent Arsenio Aldecoa.
17. Petitioner did not forge the Barangay
Certification but actually secured the
consent of Barangay Captain Jose Torre
through the efforts of Sangguniang Bayan
(SB) Board Member Florentino Sebastian.(a
copy of the Barangay Certification is
attached herewith as Annex "D" and made
an integral part hereof)
18. Petitioner Tower’s safety has been pre-
cleared and is unlikely to cause harm in
exposing the members of the public to levels
exceeding health limits considering that the
antenna height of the Tower is 45.73 meters
or equivalent to 150 feet as stated in a Radio
Frequency Evaluation report by Elizabeth H.
Mendoza health Physicist II, of the
Department of Health Radiation Health
Service dated 9 May 2000. (a copy is hereto
attached as Annex "E" and made an integral
part hereof)
19. The structural stability and soundness of
the Tower has been certified by Engr.
Melanio A. Guillen Jr. of the Engineering
Consulting firm Microflect as contained in
32
 their Stress Analysis Report (a copy is
hereto attached as Annex "F" and made an
integral part hereof)
20. petitioner’s impetus to push through
with the construction of the Tower is
spurred by the Telecommunications Act of
1995 or Republic Act 7925 which states that
the "expansion of the telecommunications
network shall give priority to improving and
extending basic services to areas not yet
served." Article II, Sec. 4 par. B.(a copy of
RA 7925 is hereto attached as Annex "G"
and made an integral part hereof)7
In the end, petitioner sought the dismissal of respondents’
Complaint; the denial of respondents’ prayer for the issuance
of a temporary restraining order and writ of preliminary
mandatory injunction; the award of moral, nominal, and
exemplary damages in the amounts which the court deem just
and reasonable; and the award of attorney’s fees in the sum
of P500,000.00 and litigation expenses as may be proven at
the trial.
Respondents then contested petitioner’s allegations and
averred in their Reply and Answer to Counterclaim that:
- Petitioner’s cell site relay antenna operates on the
ultra high frequency (UHF) band, or gigabyte band,
that is much higher than that of TV and radio
broadcasts which operates only on the Very High
Frequency (VHF) band, hence, petitioner’s
equipment generates dangerously high radiation and
emission that is hazardous to the people exposed to it
like respondents, whose houses are clustered around
petitioner’s cell site antenna/communications tower;
- As admitted, petitioner has not secured the required
Environmental Compliance Certificate (ECC). It has
not even obtained the initial compliance certificate
(ICC). In short,petitioner should have waited for
these documents before constructing its tower, hence,
it violated the law and such construction is illegal and
all the more sustains the assertions of respondents;
- The alleged building permit issued to petitioner is
illegal because of the lack of an ECC and that
petitioner’s application for a building permit covered
only a building and not a cell site antenna tower.
Moreover, the petitioner failed to obtain a National
Telecommunications Commission (NTC) Clearance
to construct the communications tower. As will be
seen in the application and permit, the documents are
dated April, 2000 while the construction begun in
March, 2000;
- The technical data that served as the basis of the
Radio Frequency Radiation Evaluation of petitioner’s
mobile telephone base station was provided solely by
the petitioner and in fact misled the DOH Radiation
Health Service. It states an absurdly low transmitted
power of twenty (20) watts for a dual band mobile
phone service such as petitioner Smart’s GSM
900/1800 Dual Band which is the standard service it
offers to the public;
- The Stress Analysis Report is self-serving and
tested against the communications tower, the
structural integrity is flawed;
- While respondents may yield to the mandate of
Republic Act No.7925, otherwise known as the
Telecommunications Act of 1995,extending and
improving or upgrading of basic services to are as not
yet served, this should not be taken as a license to
gamble and/or destroy the health and well-being of
the people;
- Petitioner’s alleged certification (Annex "D",
should be Annex "4") is the very same certification
appended to respondents’ complaint which they have
assailed as a forgery and which respondent Jose
Torre, the Barangay Captain of Vira, Roxas, Isabela,
emphatically denies having signed and/or issued the
same. Moreover, the certification gives petitioner
away because respondent Jose Torre has no technical
education using the telecommunications term
"SMART GSM & ETACS project," in said falsified
certification;
- Petitioner’s claim that it is not liable for fraud or
bad faith, proudly stating that it has painstakingly
secured the consent of the majority of the residents
surrounding the tower site, is belied by the alleged
Conformity of Host Community (Residential) –
Annex "C" – should be Annex "3" – where only a
handful of residents signed the document prepared by
petitioner and the contents of which were
misrepresented by a Sangguniang Bayan Member in
the person of Nick Sebastian who is an interested
party being the owner of the land where the tower is
constructed. It was misrepresented to Linaflor
Aldecoa, wife of respondent Arsenio Aldecoa that it
was already anyway approved and signed by
Barangay Captain Jose Torre when in truth his
signature was again forged by the petitioner and/or its
employees or agents or person working for said
company. Also, there are persons who are not
residents of Vira, Roxas, Isabela who signed the
document such as Melanio C. Gapultos of Rizal,
Roxas, Isabela, Carlito Castillo of Nuesa, Roxas,
Isabela, and another, Gennie Feliciano from San
Antonio, Roxas, Isabela. Certainly six (6) persons do
not constitute the conformity of the majority of the
residents of Vira, Roxas, Isabela, and those
immediately affected by the cellsite tower like
respondents. This document is likewise flawed and
cannot help petitioner’s cause. Besides, respondents
and other residents, sixty-two (62) of them,
33
 communicated their protest against the erection of the
cell tower specifying their reasons therefor and
expressing their sentiments and fears about
petitioner’s communications tower, xerox copy
attached as Annex "A" and made integral part hereof;
- Respondents likewise specifically deny the truth of
the allegation in paragraph 12 of the answer, the truth
being that the lot leased to petitioner is owned by SB
Member Nick Sebastian and that Florentino
Sebastian is dummying for the former in avoidance
of possible anti-graft charges against his son
concerning this project. It is also further denied for
lack of knowledge or information sufficient to form a
belief as to the truth thereof. Moreover, the lease
contract, copy not annexed to petitioner’s answer,
would automatically be terminated or ended in the
event of complaints and/or protests from the
residents.8
Civil Case No. Br. 23-632-2000 was set for pre-trial on
September 28, 2000.9
On September 11, 2000, petitioner filed its Pre-Trial Brief in
which it identified the following issues:
4.1. Whether respondents have a cause of action
against the petitioner SMART for this Honorable
Court to issue a Preliminary Mandatory Injunction
over the SMART tower in Roxas, Isabela as it
allegedly poses a threat to the lives and safety of the
residents within the area and if respondents are
entitled to moral and exemplary damages as well as
attorney’s fees and expenses of litigation.
4.2 Whether the complaint should be dismissed in
that the claim or demand set forth in the Complaint is
fictitious, imaginary, sham and without any real
basis.
4.3. What petitioner SMART is entitled under its
compulsory counterclaim against respondents for
moral and exemplary damages, attorney’s fees, and
other expenses of litigation.10
On even date, petitioner filed a Motion for Summary
Judgment that reads:
Petitioner SMART Communications Inc., thru counsel,
respectfully manifests that:
1. There is no need for a full-blown trial as the causes
of action and issues have already been identified in
all the pleadings submitted to this Honorable court by
both respondents and petitioner
2. There is clearly no genuine issue as to any material
fact or cause in the action.
3. There is no extreme urgency to issue a Preliminary
Mandatory Injunction as stated in an affidavit
executed by SMART Senior Supervisor Andres V.
Romero in an affidavit hereto attached as Annex "A"
4. Petitioner seeks immediate declaratory relief from
respondents’ contrived allegations as set forth in their
complaint;
Wherefore, it is most respectfully prayed of this Honorable
Court that summary judgment be rendered pursuant to Rule 35
of the Revised Rules of Court.11
Respondents filed their Pre-Trial Brief on September 21,
2000, proposing to limit the issues,
viz:
- Whether petitioner’s communications tower is a
nuisance per se/per accidens and together with its
standby generator maybe abated for posing danger to
the property and life and limb of the residents of
Vira, Roxas, Isabela more particularly the
respondents and those whose houses are clustered
around or in the periphery of the cell site.
- Damages, attorney’s fees, litigation expenses and
other claims.12
Respondents likewise filed on September 21, 2000 their
Opposition to petitioner’s Motion for Summary Judgment,
maintaining that there were several genuine issues relating to
the cause of action and material facts of their Complaint. They
asserted that there was a need for a full blown trial to prove
the allegations in their Complaint, as well as the defenses put
up by petitioner.13
In its Order14 dated September 28, 2000, the RTC indefinitely
postponed the pre-trial until it has resolved petitioner’s Motion
for Summary Judgment. In the same Order, the RTC directed
the counsels of both parties to submit their memoranda,
including supporting affidavits and other documents within 30
days.
Petitioner submitted its Memorandum15 on October 26, 2000;
while respondents, following several motions for extension of
time, filed their Memorandum16 on November 22, 2000. In
their Memorandum, respondents additionally alleged that:
The cellsite base station is powered by a roaring 25 KVA
power generator. Operated 24 hours since it started more than
a month ago, it has sent "jackhammers into the brains" of all
the inhabitants nearby. Everyone is going crazy. A resident
just recently operated for breast cancer is complaining that the
noise emanating from the generator is fast tracking her
appointment with death. She can no longer bear the unceasing
and irritating roar of the power generator.
34
For this, the residents, led by the respondents, sought a noise
emission test of the power generator of petitioner SMART
Communications with the DENR. The test was conducted on
November 14 and 15, 2000 and the result shows that the
petitioner’s power generator failed the noise emission test, day
and night time. Result of this test was furnished the Municipal
Mayor of Roxas, Isabela (See Communication of DENR
Regional Director Lorenzo C. Aguiluz to Mayor Benedicto
Calderon dated November 16, 2000 and the Inspection
Monitoring Report).
With these findings, the power generator is also a nuisance. It
must also be abated.17
On January 16, 2001, the RTC issued its Order granting
petitioner’s Motion for Summary Judgment and dismissing
respondents’ Complaint. The RTC ruled as follows:
What is of prime importance is the fact that contrary to the
respondents’ speculation, the radio frequency radiation as
found out by the Department of Health is much lower
compared to that of TV and radio broadcast. The respondents’
counter to this claim is that the Department of Health was
misled. This is a mere conclusion of the respondents.
The respondents in opposing the Smart’s construction of their
cellsite is anchored on the supposition that the operation of
said cellsite tower would pose a great hazard to the health of
the alleged cluster of residents nearby and the perceived
danger that the said tower might also collapse in case of a
strong typhoon that fell the Mobiline Cellsite tower of
Mobiline (sic). The structured built of the Smart’s Cellsite
tower is similar to that of the Mobiline.
Now, as to the Court’s assessment of the circumstances
obtaining, we find the claim of the respondents to be highly
speculative, if not an isolated one. Elsewhere, we find several
cellsite towers scattered (sic) allover, both of the Smart,
Globe, and others, nay even in thickly populated areas like in
Metro Manila and also in key cities nationwide, yet they have
not been outlawed or declared nuisance as the respondents
now want this Court to heed. To the thinking of the Court, the
respondents are harping imagined perils to their health for
reason only known to them perhaps especially were we to
consider that the Brgy. Captain of Vira earlier gave its
imprimatur to this project. Noteworthy is the fact that the
alleged cluster of residential houses that abut the cellsite tower
in question might be endangered thereby, the respondents are
but a few of those residents. If indeed, all those residents in
Vira were adversely affected for the perceived hazards posed
by the tower in question, they should also have been joined in
as respondents in a class suit. The sinister motive is perhaps
obvious.
All the foregoing reasons impel this Court to grant the
petitioner’s motion for the dismissal of the complaint, the
perceived dangers being highly speculative without any bases
in fact. Allegations in the complaint being more imaginary
than real, do not constitute factual bases to require further
proceeding or a trial. As to the claim that there is no
certification or clearance from the DENR for the petitioner to
lay in wait before the construction, suffice it to say that no
action as yet has been taken by said office to stop the ongoing
operation of said cellsite now in operation. There has been no
hue and cry from among the greater majority of the people of
Roxas, Isabela, against it. Al contrario, it is most welcome to
them as this is another landmark towards the progress of this
town.18
The dispositive portion of the RTC Order reads:
WHEREFORE, in view of the foregoing considerations, the
Court hereby renders judgment dismissing the complaint as
the allegations therein are purely speculative and hence no
basis in fact to warrant further proceedings of this case.
The Court finds no compelling grounds to award damages.
Without costs.19
In another Order20 dated February 27, 2001, the RTC denied
respondents’ Motion for Reconsideration.
Respondents filed an appeal with the Court of Appeals,
docketed as CA-G.R. CV No. 71337.
The Court of Appeals rendered its Decision on July 16, 2004.
The appellate court declared the cellular base station of
petitioner a nuisance that endangered the health and safety of
the residents of Barangay Vira, Roxas, Isabela because: (1) the
locational clearance granted to petitioner was a nullity due to
the lack of approval by majority of the actual residents of the
barangay and a barangay resolution endorsing the construction
of the cellular base station; and (2) the sound emission of the
generator at the cellular base station exceeded the Department
of Environment and Natural Resources (DENR) standards.
Consequently, the Court of Appeals decreed:
WHEREFORE, the appealed decision is hereby REVERSED
and SET ASIDE. A new one is entered declaring the
communications tower or base station of petitioner Smart
Communications, Inc. located at Brigido Pascual Street in
Vira, Municipality of Roxas, Province of Isabela, a nuisance.
Petitioner is ordered to cease and desist from operating the
said tower or station.21
Petitioner filed its Motion for Reconsideration arguing that:
(1) the basis for the judgment of the appellate court that the
cellular base station was a nuisance had been extinguished as
the generator subject of the Complaint was already removed;
and (2) there had been substantial compliance in securing all
required permits for the cellular base station.22
The Court of Appeals, in a Resolution dated December 9,
2004,refused to reconsider its earlier Decision, reasoning that:
35
Petitioner principally anchors its pleas for reconsideration on
the Certification issued by Roxas, Isabela Municipal Engineer
Virgilio Batucal, declaring that upon actual inspection, no
Denyo Generator Set has been found in the company’s cell
site in Roxas, Isabela. We hold, however, that the certification
dated August 12, 2004, taken on its own, does not prove
Smart’s allegation that it has abandoned using diesel- powered
generators since January 2002. Respondents’ current
photographs of the cell site clearly shows (sic) that Smart
continues to use a mobile generator emitting high level of
noise and fumes.
We have gone over [petitioner’s] other arguments and
observed that they are merely repetitive of previous
contentions which we have judiciously ruled
upon.23 (Citations omitted.)
Petitioner seeks recourse from the Court through the instant
Petition, assigning the following errors on the part of the Court
of Appeals:
21.0 The Court of Appeals erred when it encroached
upon an executive function of determining the
validity of a locational clearance when it declared,
contrary to the administrative findings of the Housing
Land Use and Regulatory Board ("HLURB"), that the
locational clearance of Petitioner was void.
22.0 The Court of Appeals erred when it resolved an
issue that was not submitted to it for resolution and in
the process had usurped a purely executive function.
23.0 The Court of Appeals erred in declaring
Petitioner’s entire base station a nuisance considering
that it was only a small part of the base station, a
generator that initially powered the base station, that
was reportedly producing unacceptable levels of
noise.
24.0 The Court of Appeals erred in not considering
that the supervening event of shut down and pull out
of the generator in the base station, the source of the
perceived nuisance, made the complaint for
abatement of nuisance academic.24
The Petition is partly meritorious. While the Court agrees that
the Court of Appeals should not have taken cognizance of the
issue of whether the locational clearance for petitioner’s
cellular base station is valid, the Court will still not reinstate
the RTC Order dated January 16, 2001 granting petitioner’s
Motion for Summary Judgment and entirely dismissing Civil
Case No. Br. 23-632-2000. The issues of (1) whether
petitioner’s cellular base station is a nuisance, and (2) whether
the generator at petitioner’s cellular base station is, by itself,
also a nuisance, ultimately involve disputed or contested
factual matters that call for the presentation of evidence at a
full-blown trial.
On the finding of the Court of
Appeals that petitioner’s locational
clearance for its cellular base station
is a nullity
Based on the principle of exhaustion of administrative
remedies and its corollary doctrine of primary jurisdiction, it
was premature for the Court of Appeals to take cognizance of
and rule upon the issue of the validity or nullity of petitioner’s
locational clearance for its cellular base station.
The principle of exhaustion of administrative remedies and the
doctrine of primary jurisdiction were explained at length by
the Court in Province of Zamboanga del Norte v. Court of
Appeals,25 as follows:
The Court in a long line of cases has held that before a party is
allowed to seek the intervention of the courts, it is a pre-
condition that he avail himself of all administrative processes
afforded him. Hence, if a remedy within the administrative
machinery can be resorted to by giving the administrative
officer every opportunity to decide on a matter that comes
within his jurisdiction, then such remedy must be exhausted
first before the court's power of judicial review can be sought.
The premature resort to the court is fatal to one's cause of
action. Accordingly, absent any finding of waiver or estoppel,
the case may be dismissed for lack of cause of action.
The doctrine of exhaustion of administrative remedies is not
without its practical and legal reasons. Indeed, resort to
administrative remedies entails lesser expenses and provides
for speedier disposition of controversies. Our courts of justice
for reason of comity and convenience will shy away from a
dispute until the system of administrative redress has been
completed and complied with so as to give the administrative
agency every opportunity to correct its error and to dispose of
the case.
xxxx
The doctrine of primary jurisdiction does not warrant a court
to arrogate unto itself the authority to resolve a controversy
the jurisdiction over which is initially lodged with an
administrative body of special competence.
We have held that while the administration grapples with the
complex and multifarious problems caused by unbridled
exploitation of our resources, the judiciary will stand clear. A
long line of cases establishes the basic rule that the court will
not interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the
regulation of activities coming under the special technical
knowledge and training of such agencies.
In fact, a party with an administrative remedy must not merely
initiate the prescribed administrative procedure to obtain
relief, but also pursue it to its appropriate conclusion before
seeking judicial intervention. The underlying principle of the
rule on exhaustion of administrative remedies rests on the
36
presumption that when the administrative body, or grievance
machinery, is afforded a chance to pass upon the matter, it will
decide the same correctly. (Citations omitted.)
The Court again discussed the said principle and doctrine in
Addition Hills Mandaluyong Civic & Social Organization,
Inc. v. Megaworld Properties & Holdings, Inc., et al.,26 citing
Republic v. Lacap,27 to wit:
We have consistently declared that the doctrine of exhaustion
of administrative remedies is a cornerstone of our judicial
system. The thrust of the rule is that courts must allow
administrative agencies to carry out their functions and
discharge their responsibilities within the specialized areas of
their respective competence. The rationale for this doctrine is
obvious. It entails lesser expenses and provides for the
speedier resolution of controversies. Comity and convenience
also impel courts of justice to shy away from a dispute until
the system of administrative redress has been completed.
In the case of Republic v. Lacap, we expounded on the
doctrine of exhaustion of administrative remedies and the
related doctrine of primary jurisdiction in this wise:
The general rule is that before a party may seek the
intervention of the court, he should first avail of all the means
afforded him by administrative processes. The issues which
administrative agencies are authorized to decide should not be
summarily taken from them and submitted to a court without
first giving such administrative agency the opportunity to
dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative
remedies is the doctrine of primary jurisdiction; that is, courts
cannot or will not determine a controversy involving a
question which is within the jurisdiction of the administrative
tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the
exercise of sound administrative discretion requiring the
special knowledge, experience and services of the
administrative tribunal to determine technical and intricate
matters of fact. (Citations omitted.)
The Housing and Land Use Regulatory Board (HLURB)28 is
the planning, regulatory, and quasi-judicial instrumentality of
government for land use development.29 In the exercise of its
mandate to ensure rational land use by regulating land
development, it issued HLURB Resolution No.R-626, series
of 1998, Approving the Locational Guidelines for Base
Stations of Cellular Mobile Telephone Service, Paging
Service, Trunking Service, Wireless Loop Service and Other
Wireless Communication Services (HLURB Guidelines). Said
HLURB Guidelines aim to protect" providers and users, as
well as the public in general while ensuring efficient and
responsive communication services."
Indeed, the HLURB Guidelines require the submission of
several documents for the issuance of a locational clearance
for a cellular base station, including:
IV. Requirements and Procedures in Securing Locational
Clearance
A. The following documents shall be submitted in duplicate:
xxxx
g. Written Consent:
g.1 Subdivisions
xxxx
g. 1.2 In the absence of an established Homeowners
Association, consent/affidavit of non-objection from majority
of actual occupants and owners of properties within a radial
distance equivalent to the height of the proposed base station
measured from its base, including all those whose properties is
adjoining the proposed site of the base station.(Refer to Figure
2)
xxxx
h. Barangay Council Resolution endorsing the base station.
Correlatively, the HLURB provides administrative remedies
for non-compliance with its requirements.
In 2000, when factual precedents to the instant case began to
take place, HLURB Resolution No. R-586, series of 1996,
otherwise known as the 1996 HLURB Rules of Procedure, as
amended, was in effect. The original 1996 HLURB Rules of
Procedure was precisely amended by HLURB Resolution No.
R-655, series of 1999, "so as to afford oppositors with the
proper channel and expeditious means to ventilate their
objections and oppositions to applications for permits,
clearances and licenses, as well as to protect the rights of
applicants against frivolous oppositions that may cause undue
delay to their projects. "Under the 1996 HLURB Rules of
Procedure, as amended, an opposition to an application for a
locational clearance for a cellular base station or a complaint
for the revocation of a locational clearance for a cellular base
station already issued, is within the original jurisdiction of the
HLURB Executive Committee. Relevant provisions read:
RULE III
Commencement of Action, Summons and Answer
xxxx
SECTION 2. Opposition to Application for Permit/License/
Clearance. – When an opposition is filed to an application for
a license, permit or clearance with the Board or any of its
Regional Field Office, the Regional Officer shall make a
preliminary evaluation and determination whether the case is
impressed with significant economic, social, environmental or
national policy implications. If he/she determines that the case
37
is so impressed with significant economic, social,
environmental or national policy implications, such as, but not
limited to:
1) Projects of national significance, for purposes of
this rule, a project is of national significance if it is
one or falls under any of those enumerated in Rule
III, Section 3 of these Rules, as amended;
2) Those involving zoning variances and exceptions;
3) Those involving significant public interest or
policy issues;
4) Those endorsed by the zoning administrators of
local government units.
The Regional Officer shall cause the records of the case to be
transmitted to the Executive Committee which shall assume
original jurisdiction over the case, otherwise, the Regional
Officer shall act on and resolve the Opposition.
SECTION 3. A project is of national significance if it involves
any of the following:
a) Power generating plants (e.g., coal-fired thermal
plants)and related facilities (e.g., transmission lines);
b) Airport/seaports; dumping sites/sanitary landfills;
reclamation projects;
c) Large-scale piggery and poultry projects;
d) Mining/quarrying projects;
e) National government centers;
f) Golf courses;
g) Fish ponds and aqua culture projects;
h) Cell sites and telecommunication facilities;
i) Economic zones, regional industrial centers,
regional agro-industrial centers, provincial industrial
centers;
j) All other industrial activities classified as high-
intensity uses (1-3 Projects).
SECTION 4. Any party aggrieved, by reason of the elevation
or non-elevation of any contested application by the Regional
Officer, may file a verified petition for review thereof within
thirty (30) days from receipt of the notice of elevation or non-
elevation of the contested application with the Executive
Committee which shall resolve whether it shall assume
jurisdiction thereon.
The contested application for clearance, permit or license shall
be treated as a complaint and all other provisions of these rules
on complaints not inconsistent with the preceding section
shall, as far as practicable, be made applicable to oppositions
except that the decision of the Board en banc on such
contested applications shall be final and executory as provided
in Rule XIX, Section 2 of these Rules, as amended.
The Rules pertaining to contested applications for license,
permit or clearance shall, by analogy, apply to cases filed
primarily for the revocation thereof.
xxxx
RULE XVII
Proceedings Before the Board of Commissioners
xxxx
SECTION 15. The Executive Committee. – The Executive
Committee shall be composed of the four regular
Commissioners and the Ex-Officio Commissioner from the
Department of Justice.
xxxx
The Executive Committee shall act for the Board on policy
matters, measures or proposals concerning the management
and substantive administrative operations of the Board subject
to ratification by the Board en banc, and shall assume original
jurisdiction over cases involving opposition to an application
for license, permit or clearance for projects or cases impressed
with significant economic, social, environmental or national
policy implications or issues in accordance with Section 2,
Rule II of these Rules, as amended. It shall also approve the
proposed agenda of the meetings of the Board en banc.
(Emphases supplied.)
After the HLURB Executive Committee had rendered its
Decision, the aggrieved party could still avail itself of a
system of administrative appeal, also provided in the 1996
HLURB Rules of Procedure, as amended:
RULE XII
Petition for Review
SECTION 1. Petition for Review. – Any party aggrieved by
the Decision of the Regional Officer, on any legal ground and
upon payment of the review fee may file with the Regional
Office a verified Petition for Review of such decision within
thirty (30) calendar days from receipt thereof.
In cases decided by the Executive Committee pursuant to Rule
II, Section 2 of these Rules, as amended, the verified Petition
shall be filed with the Executive Committee within thirty (30)
calendar days from receipt of the Committee’s Decision. Copy
of such petition shall be furnished the other party and the
Board of Commissioners. No motion for reconsideration or
38
mere notice of petition for review of the decision shall be
entertained.
Within ten (10) calendar days from receipt of the petition, the
Regional Officer, or the Executive Committee, as the case
may be, shall elevate the records to the Board of
Commissioner together with the summary of proceedings
before the Regional Office. The Petition for Review of a
decision rendered by the Executive Committee shall betaken
cognizance of by the Board en banc.
RULE XVIII
Appeal from Board Decisions
SECTION 1.
Motion for Reconsideration. – Within the period for filing an
appeal from a Board decision, order or ruling of the Board of
Commissioners, any aggrieved party may file a motion for
reconsideration with the Board only on the following grounds:
(1) serious errors of law which would result in grave injustice
if not corrected; and (2) newly discovered evidence.
Only one (1) motion for reconsideration shall be entertained.
Motions for reconsideration shall be assigned to the division
from which the decision, order or ruling originated.
SECTION 2. Appeal. – Any party may upon notice to the
Board and the other party appeal a decision rendered by the
Board of Commissioners en banc or by one of its divisions to
the Office of the President within fifteen (15) calendar days
from receipt thereof, in accordance with P.D. No. 1344 and
A.O. No. 18 Series of 1987.
RULE XIX
Entry of Judgment
xxxx
SECTION 2. Rules on Finality. – For purposes of determining
when a decision or order has become final and executory for
purposes of entry in the Book of Judgment, the following shall
be observed:
a. Unless otherwise provided in a decision or resolution
rendered by the Regional Officer, the Executive Committee,
or the Board of Commissioners, as the case may be, the orders
contained therein shall become final as regards a party thirty
(30) calendar days after the date of receipt thereof and no
petition for review or appeal therefrom has been filed within
the said period. (Emphases supplied.)
There is no showing that respondents availed themselves of
the afore-mentioned administrative remedies prior to
instituting Civil Case No. Br. 23-632-2000 before the RTC.
While there are accepted exceptions to the principle of
exhaustion of administrative remedies and the doctrine of
primary jurisdiction,30 respondents never asserted nor argued
any of them. Thus, there is no cogent reason for the Court to
apply the exceptions instead of the general rule to this case.
Ordinarily, failure to comply with the principle of exhaustion
of administrative remedies and the doctrine of primary
jurisdiction will result in the dismissal of the case for lack of
cause of action. However, the Court herein will not go to the
extent of entirely dismissing Civil Case No. Br. 23-632-2000.
The Court does not lose sight of the fact that respondents’
Complaint in Civil Case No. Br. 23-632-2000 is primarily for
abatement of nuisance; and respondents alleged the lack of
HLURB requirements for the cellular base station, not to seek
nullification of petitioner’s locational clearance, but to support
their chief argument that said cellular base station is a
nuisance which needs to be abated. The issue of whether or
not the locational clearance for said cellular base station is
valid is actually separate and distinct from the issue of
whether or not the cellular base station is a nuisance; one is
not necessarily determinative of the other. While the first is
within the primary jurisdiction of the HLURB and, therefore,
premature for the courts to rule upon in the present case, the
latter is within the jurisdiction of the courts to determine but
only after trial proper.
On the declaration of the Court of
Appeals that petitioner’s cellular
base station is a nuisance that must
be abated
Article 694 of the Civil Code defines nuisance as:
ART. 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others;
or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality;
or
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
The term "nuisance" is so comprehensive that it has been
applied to almost all ways which have interfered with the
rights of the citizens, either in person, property, the enjoyment
of his property, or his comfort.31
The Court, in AC Enterprises, Inc. v. Frabelle Properties
Corporation,32 settled that a simple suit for abatement of
nuisance, being incapable of pecuniary estimation, is within
the exclusive jurisdiction of the RTC. Although respondents
also prayed for judgment for moral and exemplary damages,
39
attorney’s fees, and litigation expenses, such claims are
merely incidental to or as a consequence of, their principal
relief.
Nonetheless, while jurisdiction over respondents’ Complaint
for abatement of nuisance lies with the courts, the respective
judgments of the RTC and the Court of Appeals cannot be
upheld.
At the outset, the RTC erred in granting petitioner’s Motion
for Summary Judgment and ordering the dismissal of
respondents’ Complaint in Civil Case No. Br. 23-632-2000.
Summary judgments are governed by Rule 35 of the Rules of
Court, pertinent provisions of which state:
SEC. 2. Summary judgment for defending party. – A party
against whom a claim, counterclaim, or cross-claim is asserted
or a declaratory relief is sought may, at any time, move with
supporting affidavits, depositions or admissions for a
summary judgment in his favor as to all or any part thereof.
SEC. 3. Motion and proceedings thereon. – The motion shall
be served at least ten (10) days before the time specified for
the hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the
hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits,
depositions, and admissions on file, show that, except as to the
amount of damages, there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law. (Emphases supplied.)
In Rivera v. Solidbank Corporation,33 the Court discussed
extensively when a summary judgment is proper:
For a summary judgment to be proper, the movant must
establish two requisites: (a) there must be no genuine issue as
to any material fact, except for the amount of damages; and
(b) the party presenting the motion for summary judgment
must be entitled to a judgment as a matter of law. Where, on
the basis of the pleadings of a moving party, including
documents appended thereto, no genuine issue as to a material
fact exists, the burden to produce a genuine issue shifts to the
opposing party. If the opposing party fails, the moving party is
entitled to a summary judgment.
A genuine issue is an issue of fact which requires the
presentation of evidence as distinguished from an issue which
is a sham, fictitious, contrived or a false claim.
The trial court can determine a genuine issue on the basis of
the pleadings, admissions, documents, affidavits or counter
affidavits submitted by the parties. When the facts as pleaded
appear uncontested or undisputed, then there is no real or
genuine issue or question as to any fact and summary
judgment called for. On the other hand, where the facts
pleaded by the parties are disputed or contested, proceedings
for a summary judgment cannot take the place of a trial. The
evidence on record must be viewed in light most favorable to
the party opposing the motion who must be given the benefit
of all favorable inferences as can reasonably be drawn from
the evidence.
Courts must be critical of the papers presented by the moving
party and not of the papers/documents in opposition thereto.
Conclusory assertions are insufficient to raise an issue of
material fact. A party cannot create a genuine dispute of
material fact through mere speculations or compilation of
differences. He may not create an issue of fact through bald
assertions, unsupported contentions and conclusory
statements. He must do more than rely upon allegations but
must come forward with specific facts in support of a claim.
Where the factual context makes his claim implausible, he
must come forward with more persuasive evidence
demonstrating a genuine issue for trial. (Emphases supplied;
citations omitted.)
Judging by the aforequoted standards, summary judgment
cannot be rendered in this case as there are clearly factual
issues disputed or contested by the parties. As respondents
correctly argued in their Opposition to petitioner’s Motion for
Summary Judgment:
1. Contrary to the claim of petitioner, there are several genuine
issues as to the cause of action and material facts related to the
complaint. For one there is an issue on the structural integrity
of the tower, the ultra high frequency (UHF) radio wave
emission radiated by the communications tower affecting the
life, health and well being of the[respondents] and the
barangay residents, especially their children. Also, the
noxious/deleterious fumes and the noise produce[d] by the
standby generator and the danger posted by the tower if it
collapses in regard to life and limb as well as the property of
the [respondents] particularly those whose houses abut, or are
near/within the periphery of the communications tower. x x x34
Likewise constituting real or genuine issues for trial, which
arose from subsequent events, are the following: whether the
generator subject of respondents’ Complaint had been
removed; whether said generator had been replaced by another
that produces as much or even more noise and fumes; and
whether the generator is a nuisance that can be abated
separately from the rest of the cellular base station.
Furthermore, the Court demonstrated in AC Enterprises, Inc.
the extensive factual considerations of a court before it can
arrive at a judgment in an action for abatement of nuisance:
Whether or not noise emanating from a blower of the air
conditioning units of the Feliza Building is nuisance is to be
resolved only by the court in due course of
proceedings.1âwphi1 The plaintiff must prove that the noise is
a nuisance and the consequences thereof. Noise is not a
nuisance per se. It may be of such a character as to constitute a
nuisance, even though it arises from the operation of a lawful
business, only if it affects injuriously the health or comfort of
ordinary people in the vicinity to an unreasonable extent.
40
Injury to a particular person in a peculiar position or of
especially sensitive characteristics will not render the noise an
actionable nuisance. In the conditions of present living, noise
seems inseparable from the conduct of many necessary
occupations. Its presence is a nuisance in the popular sense in
which that word is used, but in the absence of statute, noise
becomes actionable only when it passes the limits of
reasonable adjustment to the conditions of the locality and of
the needs of the maker to the needs of the listener. What those
limits are cannot be fixed by any definite measure of quantity
or quality; they depend upon the circumstances of the
particular case. They may be affected, but are not controlled,
by zoning ordinances. The delimitation of designated areas to
use for manufacturing, industry or general business is not a
license to emit every noise profitably attending the conduct of
any one of them.
The test is whether rights of property, of health or of comfort
are so injuriously affected by the noise in question that the
sufferer is subjected to a loss which goes beyond the
reasonable limit imposed upon him by the condition of living,
or of holding property, in a particular locality in fact devoted
to uses which involve the emission of noise although ordinary
care is taken to confine it within reasonable bounds; or in the
vicinity of property of another owner who, though creating a
noise, is acting with reasonable regard for the rights of those
affected by it.
Commercial and industrial activities which are lawful in
themselves may become nuisances if they are so offensive to
the senses that they render the enjoyment of life and property
uncomfortable. The fact that the cause of the complaint must
be substantial has often led to expressions in the opinions that
to be a nuisance the noise must be deafening or loud or
excessive and unreasonable. The determining factor when
noise alone is the cause of complaint is not its intensity or
volume. It is that the noise is of such character as to produce
actual physical discomfort and annoyance to a person of
ordinary sensibilities, rendering adjacent property less
comfortable and valuable. If the noise does that it can well be
said to be substantial and unreasonable in degree, and
reasonableness is a question of fact dependent upon all the
circumstances and conditions. There can be no fixed standard
as to what kind of noise constitutes a nuisance.
The courts have made it clear that in every case the question is
one of reasonableness. What is a reasonable use of one’s
property and whether a particular use is an unreasonable
invasion of another’s use and enjoyment of his property so as
to constitute a nuisance cannot be determined by exact rules,
but must necessarily depend upon the circumstances of each
case, such as locality and the character of the surroundings,
the nature, utility and social value of the use, the extent and
nature of the harm involved, the nature, utility and social value
of the use or enjoyment invaded, and the like.
Persons who live or work in thickly populated business
districts must necessarily endure the usual annoyances and of
those trades and businesses which are properly located and
carried on in the neighborhood where they live or work. But
these annoyances and discomforts must not be more than those
ordinarily to be expected in the community or district, and
which are incident to the lawful conduct of such trades and
businesses. If they exceed what might be reasonably expected
and cause unnecessary harm, then the court will grant relief.
A finding by the LGU that the noise quality standards under
the law have not been complied with is not a prerequisite nor
constitutes indispensable evidence to prove that the defendant
is or is not liable for a nuisance and for damages. Such finding
is merely corroborative to the testimonial and/or other
evidence to be presented by the parties. The exercise of due
care by the owner of a business in its operation does not
constitute a defense where, notwithstanding the same, the
business as conducted, seriously affects the rights of those in
its vicinity.35(Citations omitted.)
A reading of the RTC Order dated January 16, 2001 readily
shows that the trial court did not take into account any of the
foregoing considerations or tests before summarily dismissing
Civil Case No. Br. 23-632-2000. The reasoning of the RTC
that similar cellular base stations are scattered in heavily
populated areas nationwide and are not declared nuisances is
unacceptable. As to whether or not this specific cellular base
station of petitioner is a nuisance to respondents is largely
dependent on the particular factual circumstances involved in
the instant case, which is exactly why a trial for threshing out
disputed or contested factual issues is indispensable.
Evidently, it was the RTC which engaged in speculations and
unsubstantiated conclusions.
For the same reasons cited above, without presentation by the
parties of evidence on the contested or disputed facts, there
was no factual basis for declaring petitioner's cellular base
station a nuisance and ordering petitioner to cease and desist
from operating the same.
Given the equally important interests of the parties in this
case, i.e., on one hand, respondents' health, safety, and
property, and on the other, petitioner's business interest and
the public's need for accessible and better cellular mobile
telephone services, the wise and prudent course to take is to
remand the case to the RTC for trial and give the parties the
opportunity to prove their respective factual claims.
WHEREFORE, premises considered, the instant Petition is
PARTIALLY GRANTED. The Decision dated July 16, 2004
and Resolution dated December 9, 2004 of the Court of
Appeals in CA-G.R. CV No. 71337 are REVERSED and SET
ASIDE. Let the records of the case be REMANDED to the
Regional Trial Court, Branch 23, of Roxas, Isabela, which is
DIRECTED to reinstate Civil Case No. Br. 23-632-2000 to its
docket and proceed with the trial and adjudication thereof with
appropriate dispatch in accordance with this Decision.
SO ORDERED.
Footnotes
41
1 27
Rollo, pp. 44-57; penned by Associate Justice 546 Phil. 87 (2007).
Ruben T. Reyes with Associate Justices Perlita J.
Tria Tirona and Jose C. Reyes, Jr., concurring. 28
Executive Order No. 648, series of 1981,
established the Human Settlements Regulatory
2
Id. at 58-59. Commission (HSRC). Subsequently, Executive Order
No. 90, series of 1986, renamed the HSRC as the
3
Id. at 126-128; penned by Judge Teodulo E. HLURB.
Mirasol.
29
http://hlurb.gov.ph/laws-issuances-2/?tabgarb=tab1
4
Records, pp. 127-128.
30
In Republic v. Lacap (supra note 27 at 97-98), the
5
Id. at 8-9. Court enumerated the exceptions: (a) where there is
estoppel on the part of the party invoking the
6 doctrine; (b) where the challenged administrative act
Id. at 10.
is patently illegal, amounting to lack of jurisdiction;
7
(c) where there is unreasonable delay or official
Id. at 20-21. inaction that will irretrievably prejudice the
complainant; (d) where the amount involved is
8
Id. at 45-46. relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely
9 legal and will ultimately have to be decided by the
Id. at 57.
courts of justice; (f) where judicial intervention is
10
Id. at 63. urgent; (g) when its application may cause great and
irreparable damage; (h) where the controverted acts
11 violate due process; (i) when the issue of non-
Id. at 67.
exhaustion of administrative remedies has been
rendered moot; (j) when there is no other plain,
12
Id. at 79. speedy and adequate remedy; (k) when strong public
interest is involved; and, (l) in quo warranto
13
Id. at 82. proceedings.

14 31
Id. at 84. AC Enterprises, Inc. v. Frabelle Properties
Corporation, 537 Phil. 114, 143 (2006).
15
Id. at 88-92.
32
Id. at 142-143.
16
Id. at 101-110.
33
521 Phil. 628, 648-649 (2006).
17
Id. at 107.
34
Records, p. 82.
18
Rollo, pp. 127-128.
35
AC Enterprises, Inc. v. Frabelle Properties
19
Id. at 128. Corporation, supra note 31 at 149-151.

20
Id. at 136.

21
Id. at 56.

22
CA rollo, pp. 93-96.

23
Rollo, p. 59.

24
Id. at 15-16.

25
396 Phil. 709, 717-720 (2000).

26
G.R. No. 175039, April 18, 2012, 670 SCRA 83,
89-90.
42
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 187854 November 12, 2013
RAY PETER O. VIVO, Petitioner,
vs.
PHILIPPINE AMUSEMENT AND GAME
CORPORATION (PAGCOR), Respondent.
DECISION
BERSAMIN, J.:
By petition for review on certiorari the petitioner seeks the
review and reversal of the decision promulgated on February
27, 2009,1 whereby the Court of Appeals CA) reversed and set
aside the resolutions of the Civil Service Commission CSC)
dated April 20072 and August 1, 2007.3
Also under review is the denial by the CA of the petitioner’s
motion for reconsideration through the resolution promulgated
May 11, 2009.4
Antecedents
The petitioner was employed by respondent Philippine
Amusement and Gaming Corporation (PAGCOR) on
September 9, 1986, and was PAGCOR’s Managing Head of
its Gaming Department at the time of his dismissal from
office.5 On February 21, 2002, he received a letter from
Teresita S. Ela, the Senior Managing Head of PAGCOR’s
Human Resources Department, advising that he was being
administratively charged with gross misconduct, rumor-
mongering, conduct prejudicial to the interest of the company,
and loss of trust and confidence;6 that he should submit a
written explanation of the charges; and that he was at the same
time being placed under preventive suspension.7
On February 26, 2002, the petitioner’s counsel, replying to
Ela’s letter, assailed the propriety of the show-cause
memorandum as well as the basis for placing the petitioner
under preventive suspension.
On March 14, 2002, the petitioner received the summons for
him to attend an administrative inquiry, instructing him to
appear before PAGCOR’s Corporate Investigation Unit (CIU)
on March 15, 2002.8 At the petitioner’s request, however, the
inquiry was conducted at his residence on said date. His
statement was taken in a question-and-answer format. He was
also furnished the memorandum of charges that recited the
accusations against him and indicated the acts and omissions
constituting his alleged offenses. The memorandum of charges
was based on the statements of PAGCOR personnel who had
personal knowledge of the accusations against him. However,
when his counsel requested to be furnished copies of the
statements, PAGCOR rejected the request on the ground that
he had already been afforded the sufficient opportunity to
confront, hear, and answer the charges against him during the
administrative inquiry. The petitioner was then allowed to
submit his answer on March 26, 2002.
Thereafter, the CIU tendered its investigation report to
PAGCOR’s Adjudication Committee.9
The Adjudication Committee summoned the petitioner to
appear before it on May 8, 2002 in order to address questions
regarding his case. His counsel moved for the re-scheduling of
the meeting because he would not be available on said date,
but the Adjudication Committee denied the request upon the
reason that the presence of counsel was not necessary in the
proceedings. His counsel moved for the reconsideration of the
denial of the request.10
The petitioner received the letter dated May 15, 2002 from Ela
informing him of the resolution of the PAGCOR Board of
Directors in its May 14, 2002 meeting to the effect that he was
being dismissed from the service.11
After the petitioner’s motion for reconsideration vis-à-vis the
resolution of the PAGCOR Board of Directors dismissing him
from the service was denied, he appealed his dismissal to the
CSC.
In its resolution dated April 11, 2007, the CSC ruled that
PAGCOR had violated the petitioner’s right to due process,
and accordingly set aside his dismissal from the service, viz:
In fine, the Commission finds that the right of Vivo to due
process was violated when he was ousted from his office
without the corresponding Board Resolution that should have
set out the collegial decision of the PAGCOR Board of
Directors.
WHEREFORE, foregoing premises considered, the appeal of
Ray Peter O. Vivo is hereby GRANTED. The letters dated
May 15, 2002 and June 5, 2002 issued by Teresita S. Ela,
Senior Managing Head, Human Resource Department,
Philippine Amusement and Gaming Corporation (PAGCOR),
are SET ASIDE.12
xxxx
The CSC remanded the case to PAGCOR with the instruction
for PAGCOR to complete its reinvestigation within three
months from receipt of the resolution.
After the CSC denied its motion for reconsideration,
PAGCOR elevated the case to the CA.
On February 27, 2009, the CA promulgated its decision
reversing and setting aside the decision of the CSC upon its
finding that the petitioner had been accorded procedural due
43
process. The CA remanded the case to the CSC for the
determination of the appeal of the petitioner on the merits,
specifically the issue of whether the dismissal had been for
cause.13
Hence, this appeal.
Issue
The petitioner raises the following issues, namely:
1. The conclusion of the Court of Appeals that
Petitioner’s right for (sic) due process was not
violated transgressed (sic) the fundamental rules in
administrative due process.
2. The Court of Appeals decision in setting aside
CSC Resolutions Nos. 070732, dated 01 April 2007,
and 071485, dated 01 August 2007, is contrary to the
Uniform Rules on Administrative Cases in the Civil
Service and settled jurisprudence.14
The petitioner would have the Court hold that PAGCOR’s
failure to furnish him a copy of the Board Resolutions
authorizing his dismissal and denying his motion for
reconsideration was a fatal and irreparable defect in the
administrative proceedings that ultimately resulted in the
illegality of his dismissal from the service. He further argues
that he was denied due process by PAGCOR’s refusal to re-
schedule the Adjudication Committee meeting in order to
enable his counsel to attend the meeting with him, because the
refusal constituted a violation of his right to be represented by
counsel.
Ruling
The petition for review lacks merit.
The observance of fairness in the conduct of any investigation
is at the very heart of procedural due process. The essence of
due process is to be heard, and, as applied to administrative
proceedings, this means a fair and reasonable opportunity to
explain one’s side, or an opportunity to seek a reconsideration
of the action or ruling complained of.15 Administrative due
process cannot be fully equated with due process in its strict
judicial sense, for in the former a formal or trial-type hearing
is not always necessary,16 and technical rules of procedure are
not strictly applied. Ledesma v. Court of Appeals17 elaborates
on the well-established meaning of due process in
administrative proceedings in this wise:
x x x Due process, as a constitutional precept, does not always
and in all situations require a trial-type proceeding. Due
process is satisfied when a person is notified of the charge
against him and given an opportunity to explain or defend
himself. In administrative proceedings, the filing of charges
and giving reasonable opportunity for the person so charged to
answer the accusations against him constitute the minimum
requirements of due process. The essence of due process is
simply to be heard, or as applied to administrative
proceedings, an opportunity to explain one’s side, or an
opportunity to seek a reconsideration of the action or ruling
complained of.18
The petitioner actively participated in the entire course of the
investigation and hearings conducted by PAGCOR. He
received the letter from Ela apprising him of his being
administratively charged for several offenses, and directing
him to submit an explanation in writing. He was later on
properly summoned to appear before the CIU, which
conducted its proceedings in his own residence upon his
request. During the administrative inquiry, the CIU served him
a copy of the memorandum of charges, which detailed the
accusations against him and specified the acts and omissions
constituting his alleged offenses. He was also given the
opportunity to appear before the Adjudication Committee to
answer clarificatory questions. Lastly, he was informed
through a memorandum of the decision of the Board of
Directors dismissing him from the service.
In contrast, the petitioner could not dispute the observance of
his right to due process by PAGCOR as set forth herein. He
made no credible showing of the supposed violation of his
right to due process. He was heard through the written
statement he submitted in response to the memorandum of the
charges against him. He actively participated in the
administrative inquiry conducted by the CIU at his own
residence. He was afforded the opportunity to clarify his
position in the proceedings before the Adjudication
Committee. He was also able to appeal the adverse decision to
dismiss him from the service to the CSC. There is also no
question that PAGCOR complied with the twin-notice
requirement prior to the termination of his employment, the
first notice being made through Ela’s letter dated February 21,
2002 informing him on his being administratively charged for
the offenses mentioned, and the second being through the
letter dated May 15, 2002 advising him that PAGCOR’s
Board of Directors had resolved to dismiss him from the
service. It is settled that there is no denial of procedural due
process where the opportunity to be heard either through oral
arguments or through pleadings is accorded.19
The petitioner takes the CA to task for not considering: (1)
PAGCOR’s failure to furnish him copies of the Board
Resolutions referred to by Ela in the memorandum served on
him, and (2) the refusal of PAGCOR to have him be
represented by counsel.
The petitioner cannot be sustained.
As the CA found, and correctly so, the petitioner’s pleadings
explicitly admitted that his dismissal had been effected
through board resolutions. That he was not furnished copies of
the board resolutions did not negate the existence of the
resolutions, and did not invalidate the contents of the board
resolutions. It is beyond question that he was duly informed of
the subject-matter of the board resolutions. Consequently, the
CSC’s conclusion that his dismissal had been unauthorized
was unfounded. In any case, even assuming for the sake of
44
argument that there was no board resolution approving his
dismissal, the lapse did not render his dismissal illegal but
unauthorized. However, as the CA succinctly put it, an
unauthorized act could be the subject of ratification.20
As regards the supposed denial of the petitioner’s right to
counsel, it is underscored that PAGCOR denied his request to
re-schedule the conference before the Adjudication Committee
because his counsel would not be available on the day fixed
for that purpose. In its letter denying the request, the
Adjudication Committee asserted that the presence of counsel
was not indispensable in the conduct of its proceedings. We
find nothing objectionable in the denial of the request. In an
administrative proceeding like that conducted against the
petitioner, a respondent has the option of engaging the
services of counsel. As such, the right to counsel is not
imperative because administrative investigations are
themselves inquiries conducted only to determine whether
there are facts that merit disciplinary measures against erring
public officers and employees, with the purpose of
maintaining the dignity of government service.21
It is noteworthy, however, that the petitioner was actually
assisted by his counsel from the outset of the administrative
case against him. That counsel, Atty. Cesar B. Jimenea Jr. of
the Jimenea and Associates, ensured that the petitioner’s every
concern reached PAGCOR, and that he was clarified of any
matter affecting his rights all throughout the investigation and
hearings. As the records indicate, his counsel sent to Ela a
letter calling attention to supposedly palpable violations of his
client’s right to due process, and objecting to Ela’s right to
place his client under preventive suspension. The same
counsel filed in behalf of the petitioner the letter-requests to be
furnished certain documents and records of the
investigation,22 his answer to the memorandum of
charges,23 the letter-request for the re-setting of the conference
before the Adjudication Committee,24 the reconsideration of
the letter denying the request,25 and the motion to reconsider
the decision of the Board of Directors to dismiss him from the
service.26
In any event, any procedural defect in the proceedings taken
against the petitioner was cured by his filing of the motion for
reconsideration and by his appealing the adverse result to the
CSC.1âwphi1 The Court held in Gonzales v. Civil Service
Commission27 that any defect in the observance of due process
is cured by the filing of a motion for reconsideration, and that
denial of due process cannot be successfully invoked by a
party who was afforded the opportunity to be heard. In
Autencio v. Mañara,28 the Court observed that defects in
procedural due process may be cured when the party has been
afforded the opportunity to appeal or to seek reconsideration
of the action or ruling complained of.
The petitioner was not denied due process of law, for he was
afforded the fair and reasonable opportunity to explain his
side. That, to us, was sufficient to meet the requirements of
due process.29 In Casimiro v. Tandog,30the Court pronounced:
The essence of procedural due process is embodied in the
basic requirement of notice and a real opportunity to be heard.
In administrative proceedings, such as in the case at bar,
procedural due process simply means the opportunity to
explain one’s side or the opportunity to seek a reconsideration
of the action or ruling complained of. "To be heard" does not
mean only verbal arguments in court; one may be heard also
thru pleadings. Where opportunity to be heard, either through
oral arguments or pleadings, is accorded, there is no denial of
procedural due process.
In administrative proceedings, procedural due process has
been recognized to include the following: (1) the right to
actual or constructive notice of the institution of proceedings
which may affect a respondent’s legal rights; (2) a real
opportunity to be heard personally or with the assistance of
counsel, to present witnesses and evidence in one’s favor, and
to defend one’s rights; (3) a tribunal vested with competent
jurisdiction and so constituted as to afford a person charged
administratively a reasonable guarantee of honesty as well as
impartiality; and (4) a finding by said tribunal which is
supported by substantial evidence submitted for consideration
during the hearing or contained in the records or made known
to the parties affected.
In fine, the CA committed no reversible error in holding that P
AGCOR had properly observed the requirements of due
process in its administrative proceedings against the petitioner.
WHEREFORE, the Court DENIES the petition for review on
certiorari AFFIRMS the decision promulgated on February 27,
2009 by the Court of Appeals; REQUIRES the Civil Service
Commission to determine the petitioner's appeal on the merits,
particularly the issue of whether the dismissal was for cause;
and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
Footnotes
1
Rollo pp. 32-42; penned by Associate Justice
Edgardo P. Cruz retired), and concurred in by
Associate Justice Vicente S.E. Veloso, and Associate
Justice Ricardo R. Rosario.
2
Id. at 194-203.
3
Id. at 205-210.
4
Id. at 43.
5
Id. at 4.
6
Id. at 32.
7
Id.
8
Id. at 33.
45
9
Id. at 33-34. Samson, G.R. No. 161910, June 17, 2008, 554 SCRA
500, 509.
10
Id. at 34.

11
Id. at 11.

12
Id. at 202-203.

13
Id. at 41.

14
Id. at 12-13.

15
Office of the Ombudsman v. Reyes, G.R. No.
170512, October 5, 2011, 658 SCRA 626, 640; citing
Ledesma v. Court of Appeals, G.R. No. 166780,
December 27, 2007, 541 SCRA 444, 452.

16
Imperial, Jr. v. Government Service Insurance
System, G.R. No. 191224, October 4, 2011, 658
SCRA 497, 505, cited in Pat-og, Sr. v. CSC, G.R. No.
198755, June 5, 2013.

17
G.R. No. 166780, December 27, 2007, 541 SCRA
444.

18
Id. at 451-452.

19
Liguid v. Camano, Jr., A.M. No. RTJ-99-1509,
August 8, 2002, 387 SCRA 1, 10.

20
Rollo, p. 40.

21
Lumiqued v. Exevea, G.R. No. 117565, November
18, 1997, 282 SCRA 125, 141.

22
Rollo, p. 89.

23
Id. at 90-103.

24
Id. at 105.

25
Id. at 109-112.

26
Id. at 126-139.

27
G.R. No. 156253, June 15, 2006, 490 SCRA 741,
746.

28
G.R. No. 152752, January 19, 2005, 449 SCRA 46,
55-56.

29
Id. at 55.

30
G.R. No. 146137, June 8, 2005, 459 SCRA 624,
631, cited in Department of Agrarian Reform v.

46
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 188056 January 8, 2013
SPOUSES AUGUSTO G. DACUDAO AND OFELIA R.
DACUDAO, Petitioners,
vs.
SECRETARY OF JUSTICE RAUL M. GONZALES OF
THE DEPARTMENT OF JUSTICE, Respondent.
DECISION
BERSAMIN, J.:
Petitioners - residents of Bacaca Road, Davao City - were
among the investors whom Celso G. Delos Angeles, Jr. and
his associates in the Legacy Group of Companies (Legacy
Group) allegedly defrauded through the Legacy Group's "buy
back agreement" that earned them check payments that were
dishonored. After their written demands for the return of their
investments went unheeded, they initiated a number of charges
for syndicated estafa against Delos Angeles, Jr., et al. in the
Office of the City Prosecutor of Davao City on February 6,
2009. Three of the cases were docketed as NPS Docket No.
XI-02-INV.-09-A-00356, Docket No. XI-02-INV.-09-C-
00752, and Docket No. XI-02-INV.-09-C-00753.1
On March 18, 2009, the Secretary of Justice issued
Department of Justice (DOJ) Order No. 182 (DO No. 182),
directing all Regional State Prosecutors, Provincial
Prosecutors, and City Prosecutors to forward all cases already
filed against Delos Angeles, Jr., et al. to the Secretariat of the
DOJ Special Panel in Manila for appropriate action.
DO No. 182 reads:2
All cases against Celso G. delos Angeles, Jr., et al. under
Legacy Group of Companies, may be filed with the docket
section of the National Prosecution Service, Department of
Justice, Padre Faura, Manila and shall be forwarded to the
Secretariat of the Special Panel for assignment and
distribution to panel members, per Department Order No. 84
dated February 13, 2009.
However, cases already filed against Celso G. delos Angeles,
Jr. et al. of Legacy group of Companies in your respective
offices with the exemption of the cases filed in Cagayan de
Oro City which is covered by Memorandum dated March 2,
2009, should be forwarded to the Secretariat of the Special
Panel at Room 149, Department of Justice, Padre Faura,
Manila, for proper disposition.
For information and guidance.
Pursuant to DO No. 182, the complaints of petitioners were
forwarded by the Office of the City Prosecutor of Davao City
to the Secretariat of the Special Panel of the DOJ.3
Aggrieved by such turn of events, petitioners have directly
come to the Court via petition for certiorari, prohibition and
mandamus, ascribing to respondent Secretary of Justice grave
abuse of discretion in issuing DO No. 182. They claim that
DO No. 182 violated their right to due process, their right to
the equal protection of the laws, and their right to the speedy
disposition of cases. They insist that DO No. 182 was an
obstruction of justice and a violation of the rule against
enactment of laws with retroactive effect.
Petitioners also challenge as unconstitutional the issuance of
DOJ Memorandum dated March 2, 2009 exempting from the
coverage of DO No. No. 182 all the cases for syndicated estafa
already filed and pending in the Office of the City Prosecutor
of Cagayan de Oro City. They aver that DOJ Memorandum
dated March 2, 2009 violated their right to equal protection
under the Constitution.
The Office of the Solicitor General (OSG), representing
respondent Secretary of Justice, maintains the validity of DO
No. 182 and DOJ Memorandum dated March 2, 2009, and
prays that the petition be dismissed for its utter lack of merit.
Issues
The following issues are now to be resolved, to wit:
1. Did petitioners properly bring their petition for
certiorari, prohibition and mandamus directly to the
Court?
2. Did respondent Secretary of Justice commit grave
abuse of discretion in issuing DO No. 182?
3. Did DO No. 182 and DOJ Memorandum dated
March 2, 2009 violate petitioners’ constitutionally
guaranteed rights?
Ruling
The petition for certiorari, prohibition and mandamus, being
bereft of substance and merit, is dismissed.
Firstly, petitioners have unduly disregarded the hierarchy of
courts by coming directly to the Court with their petition for
certiorari, prohibition and mandamus without tendering
therein any special, important or compelling reason to justify
the direct filing of the petition.
We emphasize that the concurrence of jurisdiction among the
Supreme Court, Court of Appeals and the Regional Trial
Courts to issue the writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and injunction did not give
petitioners the unrestricted freedom of choice of court
47
forum.4 An undue disregard of this policy against direct resort
to the Court will cause the dismissal of the recourse. In Bañez,
Jr. v. Concepcion,5 we explained why, to wit:
The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not to
be ignored without serious consequences. The strictness of the
policy is designed to shield the Court from having to deal with
causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has
assigned to it. The Court may act on petitions for the
extraordinary writs of certiorari, prohibition and mandamus
only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy. This was
why the Court stressed in Vergara, Sr. v. Suelto:
x x x. The Supreme Court is a court of last resort, and must so
remain if it is to satisfactorily perform the functions assigned
to it by the fundamental charter and immemorial tradition. It
cannot and should not be burdened with the task of dealing
with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised
only where absolutely necessary or where serious and
important reasons exist therefor. Hence, that jurisdiction
should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts
for some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also
within the competence of the Court of Appeals or a Regional
Trial Court, it is in either of these courts that the specific
action for the writ’s procurement must be presented. This is
and should continue to be the policy in this regard, a policy
that courts and lawyers must strictly observe. (Emphasis
supplied)
In People v. Cuaresma, the Court has also amplified the need
for strict adherence to the policy of hierarchy of courts. There,
noting "a growing tendency on the part of litigants and
lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed
upon and adjudicated directly and immediately by the highest
tribunal of the land," the Court has cautioned lawyers and
litigants against taking a direct resort to the highest tribunal,
viz:
x x x. This Court’s original jurisdiction to issue writs of
certiorari (as well as prohibition, mandamus, quo warranto,
habeas corpus and injunction) is not exclusive. It is shared by
this Court with Regional Trial Courts x x x, which may issue
the writ, enforceable in any part of their respective regions. It
is also shared by this Court, and by the Regional Trial Court,
with the Court of Appeals x x x, although prior to the
effectivity of Batas Pambansa Bilang 129 on August 14, 1981,
the latter's competence to issue the extraordinary writs was
restricted to those "in aid of its appellate jurisdiction." This
concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all a
hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue
these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in
the petition. This is established policy. It is a policy that is
necessary to prevent inordinate demands upon the Court’s
time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of the
restriction on the jurisdiction of the Court of Appeals in this
regard, supra— resulting from the deletion of the qualifying
phrase, "in aid of its appellate jurisdiction" — was evidently
intended precisely to relieve this Court pro tanto of the burden
of dealing with applications for the extraordinary writs which,
but for the expansion of the Appellate Court corresponding
jurisdiction, would have had to be filed with it.1âwphi1
xxxx
The Court therefore closes this decision with the declaration
for the information and evidence of all concerned, that it will
not only continue to enforce the policy, but will require a more
strict observance thereof. (Emphasis supplied)
Accordingly, every litigant must remember that the Court is
not the only judicial forum from which to seek and obtain
effective redress of their grievances. As a rule, the Court is a
court of last resort, not a court of the first instance. Hence,
every litigant who brings the petitions for the extraordinary
writs of certiorari, prohibition and mandamus should ever be
mindful of the policy on the hierarchy of courts, the
observance of which is explicitly defined and enjoined in
Section 4 of Rule 65, Rules of Court, viz:
Section 4. When and where petition filed. - The petition shall
be filed not later than sixty (60) days from notice of the
judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such
motion is required or not, the sixty (60) day period shall be
counted from notice of the denial of the said motion.
The petition shall be filed in the Supreme Court or, if it relates
to the acts or omissions of a lower court or of a corporation,
board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme
Court. It may also be filed in the Court of Appeals whether or
not the same is in the aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it
involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these rules, the petition
shall be filed in and cognizable only by the Court of Appeals.
48
In election cases involving an act or an omission of a
municipal or a regional trial court, the petition shall be filed
exclusively with the Commission on Elections, in aid of its
appellate jurisdiction.6
Secondly, even assuming arguendo that petitioners’ direct
resort to the Court was permissible, the petition must still be
dismissed.
The writ of certiorari is available only when any tribunal,
board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law.7 "The sole
office of the writ of certiorari," according to Delos Santos v.
Metropolitan Bank and Trust Company:8
x x x is the correction of errors of jurisdiction, which includes
the commission of grave abuse of discretion amounting to lack
of jurisdiction. In this regard, mere abuse of discretion is not
enough to warrant the issuance of the writ. The abuse of
discretion must be grave, which means either that the judicial
or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or
that the respondent judge, tribunal or board evaded a positive
duty, or virtually refused to perform the duty enjoined or to act
in contemplation of law, such as when such judge, tribunal or
board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of
jurisdiction.
For a special civil action for certiorari to prosper, therefore,
the following requisites must concur, namely: (a) it must be
directed against a tribunal, board or officer exercising judicial
or quasi-judicial functions; (b) the tribunal, board, or officer
must have acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of
jurisdiction; and (c) there is no appeal nor any plain, speedy,
and adequate remedy in the ordinary course of law. 9 The
burden of proof lies on petitioners to demonstrate that the
assailed order was issued without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack or excess
of jurisdiction.
Yet, petitioners have not shown a compliance with the
requisites. To start with, they merely alleged that the Secretary
of Justice had acted without or in excess of his jurisdiction.
Also, the petition did not show that the Secretary of Justice
was an officer exercising judicial or quasi-judicial functions.
Instead, the Secretary of Justice would appear to be not
exercising any judicial or quasi-judicial functions because his
questioned issuances were ostensibly intended to ensure his
subordinates’ efficiency and economy in the conduct of the
preliminary investigation of all the cases involving the Legacy
Group. The function involved was purely executive or
administrative.
The fact that the DOJ is the primary prosecution arm of the
Government does not make it a quasi-judicial office or
agency. Its preliminary investigation of cases is not a quasi-
judicial proceeding. Nor does the DOJ exercise a quasi-
judicial function when it reviews the findings of a public
prosecutor on the finding of probable cause in any case.
Indeed, in Bautista v. Court of Appeals,10 the Supreme Court
has held that a preliminary investigation is not a quasi-judicial
proceeding, stating:
x x x the prosecutor in a preliminary investigation does not
determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether
a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting
as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal.11
There may be some decisions of the Court that have
characterized the public prosecutor’s power to conduct a
preliminary investigation as quasi-judicial in nature. Still, this
characterization is true only to the extent that the public
prosecutor, like a quasi-judicial body, is an officer of the
executive department exercising powers akin to those of a
court of law.
But the limited similarity between the public prosecutor and a
quasi-judicial body quickly endsthere. For sure, a quasi-
judicial body is an organ of government other than a court of
law or a legislative office that affects the rights of private
parties through either adjudication or rule-making; it performs
adjudicatory functions, and its awards and adjudications
determine the rights of the parties coming before it; its
decisions have the same effect as the judgments of a court of
law. In contrast, that is not the effect whenever a public
prosecutor conducts a preliminary investigation to determine
probable cause in order to file a criminal information against a
person properly charged with the offense, or whenever the
Secretary of Justice reviews the public prosecutor’s orders or
resolutions.
Petitioners have self-styled their petition to be also for
prohibition. However, we do not see how that can be. They
have not shown in their petition in what manner and at what
point the Secretary of Justice, in handing out the assailed
issuances, acted without or in excess of his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction. On the other hand, we already indicated why the
issuances were not infirmed by any defect of jurisdiction.
Hence, the blatant omissions of the petition transgressed
Section 2, Rule 65 of the Rules of Court, to wit:
Section 2. Petition for prohibition. — When the proceedings
of any tribunal, corporation, board, officer or person, whether
49
exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be
rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice
may require.
The petition shall likewise be accompanied by a certified true
copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46. (2a)
Similarly, the petition could not be one for mandamus, which
is a remedy available only when "any tribunal, corporation,
board, officer or person unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully excludes another
from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper
court."12 The main objective of mandamus is to compel the
performance of a ministerial duty on the part of the
respondent. Plainly enough, the writ of mandamus does not
issue to control or review the exercise of discretion or to
compel a course of conduct,13 which, it quickly seems to us,
was what petitioners would have the Secretary of Justice do in
their favor. Consequently, their petition has not indicated how
and where the Secretary of Justice’s assailed issuances
excluded them from the use and enjoyment of a right or office
to which they were unquestionably entitled.
Thirdly, there is no question that DO No. 182 enjoyed a strong
presumption of its validity. In ABAKADA Guro Party List v.
Purisima,14 the Court has extended the presumption of validity
to legislative issuances as well as to rules and regulations
issued by administrative agencies, saying:
Administrative regulations enacted by administrative agencies
to implement and interpret the law which they are entrusted to
enforce have the force of law and are entitled to respect. Such
rules and regulations partake of the nature of a statute and are
just as binding as if they have been written in the statute itself.
As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent
court.15
DO No. 182 was issued pursuant to Department Order No. 84
that the Secretary of Justice had promulgated to govern the
performance of the mandate of the DOJ to "administer the
criminal justice system in accordance with the accepted
processes thereof"16 as expressed in Republic Act No. 10071
(Prosecution Service Act of 2010) and Section 3, Chapter I,
Title III and Section 1, Chapter I, Title III of Book IV of
Executive Order 292 (Administrative Code of 1987).
To overcome this strong presumption of validity of the
questioned issuances, it became incumbent upon petitioners to
prove their unconstitutionality and invalidity, either by
showing that the Administrative Code of 1987 did not
authorize the Secretary of Justice to issue DO No. 182, or by
demonstrating that DO No. 182 exceeded the bounds of the
Administrative Code of 1987 and other pertinent laws. They
did not do so. They must further show that the performance of
the DOJ’s functions under the Administrative Code of 1987
and other pertinent laws did not call for the impositions laid
down by the assailed issuances. That was not true here, for DO
No 182 did not deprive petitioners in any degree of their right
to seek redress for the alleged wrong done against them by the
Legacy Group. Instead, the issuances were designed to assist
petitioners and others like them expedite the prosecution, if
warranted under the law, of all those responsible for the wrong
through the creation of the special panel of state prosecutors
and prosecution attorneys in order to conduct a nationwide and
comprehensive preliminary investigation and prosecution of
the cases. Thereby, the Secretary of Justice did not act
arbitrarily or oppressively against petitioners.
Fourthly, petitioners attack the exemption from the
consolidation decreed in DO No. 182 of the cases filed or
pending in the Office of the City Prosecutor of Cagayan de
Oro City, claiming that the exemption traversed the
constitutional guaranty in their favor of the equal protection of
law.17
The exemption is covered by the assailed DOJ Memorandum
dated March 2, 2009, to wit:
It has come to the attention of the undersigned that cases for
syndicated estafa were filed with your office against officers
of the Legacy Group of Companies. Considering the distance
of the place of complainants therein to Manila, your Office is
hereby exempted from the directive previously issued by the
undersigned requiring prosecution offices to forward the
records of all cases involving Legacy Group of Companies to
the Task Force.
Anent the foregoing, you are hereby directed to conduct
preliminary investigation of all cases involving the Legacy
Group of Companies filed in your office with dispatch and to
file the corresponding informations if evidence warrants and
to prosecute the same in court.
Petitioners’ attack deserves no consideration. The equal
protection clause of the Constitution does not require the
universal application of the laws to all persons or things
without distinction; what it requires is simply equality among
equals as determined according to a valid
classification.18 Hence, the Court has affirmed that if a law
neither burdens a fundamental right nor targets a suspect class,
the classification stands as long as it bears a rational
relationship to some legitimate government end.19
50
That is the situation here. In issuing the assailed DOJ
Memorandum dated March 2, 2009, the Secretary of Justice
took into account the relative distance between Cagayan de
Oro, where many complainants against the Legacy Group
resided, and Manila, where the preliminary investigations
would be conducted by the special panel. He also took into
account that the cases had already been filed in the City
Prosecutor’s Office of Cagayan de Oro at the time he issued
DO No. 182. Given the considerable number of complainants
residing in Cagayan de Oro City, the Secretary of Justice was
fully justified in excluding the cases commenced in Cagayan
de Oro from the ambit of DO No. 182. The classification taken
into consideration by the Secretary of Justice was really valid.
Resultantly, petitioners could not inquire into the wisdom
behind the exemption upon the ground that the non-
application of the exemption to them would cause them some
inconvenience.
Fifthly, petitioners contend that DO No. 182 violated their
right to the speedy disposition of cases guaranteed by the
Constitution. They posit that there would be considerable
delay in the resolution of their cases that would definitely be
"a flagrant transgression of petitioners’ constitutional rights to
speedy disposition of their cases."20
We cannot favor their contention.
In The Ombudsman v. Jurado,21 the Court has clarified that
although the Constitution guarantees the right to the speedy
disposition of cases, such speedy disposition is a flexible
concept. To properly define that concept, the facts and
circumstances surrounding each case must be evaluated and
taken into account. There occurs a violation of the right to a
speedy disposition of a case only when the proceedings are
attended by vexatious, capricious, and oppressive delays, or
when unjustified postponements of the trial are sought and
secured, or when, without cause or justifiable motive, a long
period of time is allowed to elapse without the party having
his case tried.22 It is cogent to mention that a mere
mathematical reckoning of the time involved is not
determinant of the concept.23
The consolidation of the cases against Delos Angeles, Jr., et
al. was ordered obviously to obtain expeditious justice for the
parties with the least cost and vexation to them. Inasmuch as
the cases filed involved similar or related questions to be dealt
with during the preliminary investigation, the Secretary of
Justice rightly found the consolidation of the cases to be the
most feasible means of promoting the efficient use of public
resources and of having a comprehensive investigation of the
cases.
On the other hand, we do not ignore the possibility that there
would be more cases reaching the DOJ in addition to those
already brought by petitioners and other parties. Yet, any
delays in petitioners’ cases occasioned by such other and
subsequent cases should not warrant the invalidation of DO
No. 182. The Constitution prohibits only the delays that are
unreasonable, arbitrary and oppressive, and tend to render
rights nugatory.24 In fine, we see neither undue delays, nor any
violation of the right of petitioners to the speedy disposition of
their cases.
Sixthly, petitioners assert that the assailed issuances should
cover only future cases against Delos Angeles, Jr., et al., not
those already being investigated. They maintain that DO No.
182 was issued in violation of the prohibition against passing
laws with retroactive effect.
Petitioners’ assertion is baseless.
As a general rule, laws shall have no retroactive effect.
However, exceptions exist, and one such exception concerns a
law that is procedural in nature. The reason is that a remedial
statute or a statute relating to remedies or modes of procedure
does not create new rights or take away vested rights but only
operates in furtherance of the remedy or the confirmation of
already existing rights.25 A statute or rule regulating the
procedure of the courts will be construed as applicable to
actions pending and undetermined at the time of its passage.
All procedural laws are retroactive in that sense and to that
extent. The retroactive application is not violative of any right
of a person who may feel adversely affected, for, verily, no
vested right generally attaches to or arises from procedural
laws.
Finally, petitioners have averred but failed to establish that
DO No. 182 constituted obstruction of justice. This ground of
the petition, being unsubstantiated, was unfounded.
Nonetheless, it is not amiss to reiterate that the authority of the
Secretary of Justice to assume jurisdiction over matters
involving the investigation of crimes and the prosecution of
offenders is fully sanctioned by law. Towards that end, the
Secretary of Justice exercises control and supervision over all
the regional, provincial, and city prosecutors of the country;
has broad discretion in the discharge of the DOJ’s functions;
and administers the DOJ and its adjunct offices and agencies
by promulgating rules and regulations to carry out their
objectives, policies and functions.
Consequently, unless and until the Secretary of Justice acts
beyond the bounds of his authority, or arbitrarily, or
whimsically, or oppressively, any person or entity who may
feel to be thereby aggrieved or adversely affected should have
no right to call for the invalidation or nullification of the rules
and regulations issued by, as well as other actions taken by the
Secretary of Justice.
WHEREFORE, the Court DISMISSES the omnibus petition
for certiorari, prohibition, and mandamus for lack of merit.
Petitioners shall pay the costs of suit.
SO ORDERED.
Footnotes
51
1 19
Rollo, pp. 7 and 19. E.g., Ang Ladlad LGBT Party v. Commission on
Elections, G.R. No. 190582, April 8, 2010, 618
2
Id. at 18. SCRA 32, 63.

20
3
Id. at 19. Rollo, p. 13.

21
4
Heirs of Bertuldo Hinog v. Melicor, G.R. No. G.R. No. 154155, August 6, 2008, 561 SCRA 135,
140954, April 12, 2005, 455 SCRA 460, 470. 146.

5
G.R. No. 159508, August 29, 2012.
6
This rule has been amended, first by A.M. No. 00-2-
03-SC (Re: Amendment to Section 4, Rule 65 of the
1997 Rules of Civil Procedure) to specify that the 60-
day period within which to file the petition starts to
run from receipt of notice of the denial of the motion
for reconsideration, if one is filed (effective
September 1, 2000); and by A.M. No. 07-7-12-SC, to
add the last paragraph (effective December 27, 2007).
7
Section 1, Rule 65, Rules of Court; Pilipino
Telephone Corporation v. Radiomarine Network,
Inc., G.R. No. 152092, August 4, 2010, 626 SCRA
702, 735.
8
G.R. No. 153852, October 24, 2012.
22
Yulo v. People, G.R. No. 142762, March 4, 2005,
452 SCRA 705, 710.
23
See Bernat v. Sandiganbayan, G.R. No. 158018,
May 20, 2004, 428 SCRA 787, 789.
24
Caballero v. Alfonso, Jr., G.R. No. L-45647,
August 21, 1987, 153 SCRA 153, 163.
25
Systems Factors Corporation v. National Labor
Relations Commission, G.R. No. 143789, November
27, 2000, 346 SCRA 149, 152; Gregorio vs. Court of
Appeals, No. L-22802, November 29, 1968, 26
SCRA 229; Tinio vs. Mina, No. L-29488, December
24, 1968, 26 SCRA 512; Billiones vs. Court of
Industrial Relations, No. L-17566, July 30, 1965, 14
SCRA 674.

9
Acuzar v. Jorolan, G.R. No. 177878, April 7, 2010,
617 SCRA 519, 527-528.

10
G.R. No. 143375, July 6, 2001, 360 SCRA 618.

11
Id. at 623.

12
Section 3, Rule 65, Rules of Court.

13
University of San Agustin, Inc. v. Court of
Appeals, G.R. No. 100588, March 7, 1994, 230
SCRA 761, 771-772.

14
G.R. No. 166715, August 14, 2008, 562 SCRA
251.

15
Id. at 288-289.

16
Section 1, Chapter I, Title III, Book IV, Executive
Order No. 292.

17
Rollo, p. 11.

18
Quinto v. Commission on Elections, G.R. No.
189698, February 22, 2010, 613 SCRA 385, 414;
citing The Philippine Judges Association v. Prado,
G.R. No. 105371, November 11, 1993, 227 SCRA
703, 712.

52
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 193960 January 7, 2013
KARLO ANGELO DABALOS y SAN DIEGO, Petitioner,
vs.
REGIONAL TRIAL COURT,BRANCH 59, ANGELES
CITY (PAMPANGA), REPRESENTED BY ITS
PRESIDING JUDGE MA. ANGELICA T. PARAS-
QUIAMBAO; THE OFFICE OF THE CITY
PROSECUTOR, ANGELES CITY (PAMPANGA); AND
ABC,1 Respondents.
DECISION
PERLAS-BERNABE, J.:
The Court will not read into Republic Act (RA) No. 9262 a
provision that would render it toothless in the pursuit of the
declared policy of the State to protect women and children
from violence and threats to their personal safety and security.
Before the Court is a petition for certiorari and prohibition
assailing the Orders dated September 13, 2010 2 and October 5,
20103 of the Regional Trial Court (RTC) of Angeles City,
Branch 59 in Criminal Case No. 09-5210 which denied
petitioner’s Motion for Judicial Determination of Probable
Cause with Motion to Quash the Information.
The Facts
Petitioner was charged with violation of Section 5(a) of RA
9262 before the RTC of Angeles City, Branch 59, in an
Information which states:
That on or about the 13th day of July, 2009, in the City of
Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being then the
boyfriend of the complainant, x x x did then and there
willfully, unlawfully and feloniously use personal violence on
the complainant, by pulling her hair, punching complainant’s
back, shoulder and left eye, thereby demeaning and degrading
the complainant’s intrinsic worth and dignity as a human
being, in violation of Section 5(a) of the Republic Act 9262.4
After examining the supporting evidence, the RTC found
probable cause and consequently, issued a warrant of arrest
against petitioner on November 19, 2009. The latter posted a
cash bond for his provisional liberty and on August 12, 2010,
filed a Motion for Judicial Determination of Probable Cause
with Motion to Quash the Information. Petitioner averred that
at the time of the alleged incident on July 13, 2009, he was no
longer in a dating relationship with private respondent; hence,
RA 9262 was inapplicable.
In her affidavit, private respondent admitted that her
relationship with petitioner had ended prior to the subject
incident. She narrated that on July 13, 2009, she sought
payment of the money she had lent to petitioner but the latter
could not pay. She then inquired from petitioner if he was
responsible for spreading rumors about her which he admitted.
Thereupon, private respondent slapped petitioner causing the
latter to inflict on her the physical injuries alleged in the
Information.
The RTC Ruling
The RTC denied petitioner’s motion. It did not consider
material the fact that the parties’ dating relationship had
ceased prior to the incident, ratiocinating that since the parties
had admitted a prior dating relationship, the infliction of slight
physical injuries constituted an act of violence against women
and their children as defined in Sec. 3(a) of RA 9262.
Issues
Hence, the instant petition raising the following issues: 1)
whether the RTC has jurisdiction over the offense; 2) whether
RA 9262 should be construed in a manner that will favor the
accused; and 3) whether the Information alleging a fact
contrary to what has been admitted should be quashed.
The Court’s Ruling
The petition has no merit.
Petitioner insists that the act which resulted in physical
injuries to private respondent is not covered by RA 9262
because its proximate cause was not their dating relationship.
Instead, he claims that the offense committed was only slight
physical injuries under the Revised Penal Code which falls
under the jurisdiction of the Municipal Trial Court.
The Court is not persuaded.
Sec. 3(a) of RA 9262 reads:
SEC. 3. Definition of Terms.- As used in this Act, (a)
"Violence against women and their children" refers to any act
or a series of acts committed by any person against a woman
who is his wife, former wife, or against a woman with whom
the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode,
which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including
threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty. x x x.
The law is broad in scope but specifies two limiting
qualifications for any act or series of acts to be considered as a
crime of violence against women through physical harm,
namely: 1) it is committed against a woman or her child and
53
the woman is the offender’s wife, former wife, or with whom
he has or had sexual or dating relationship or with whom he
has a common child; and 2) it results in or is likely to result in
physical harm or suffering.
In Ang v. Court of Appeals,5 the Court enumerated the
elements of the crime of violence against women through
harassment, to wit:
1. The offender has or had a sexual or dating
relationship with the offended woman;
2. The offender, by himself or through another,
commits an act or series of acts of harassment against
the woman; and
3. The harassment alarms or causes substantial
emotional or psychological distress to her.6
Notably, while it is required that the offender has or had a
sexual or dating relationship with the offended woman, for RA
9262 to be applicable, it is not indispensable that the act of
violence be a consequence of such relationship. Nowhere in
the law can such limitation be inferred. Hence, applying the
rule on statutory construction that when the law does not
distinguish, neither should the courts, then, clearly, the
punishable acts refer to all acts of violence against women
with whom the offender has or had a sexual or dating
relationship. As correctly ruled by the RTC, it is immaterial
whether the relationship had ceased for as long as there is
sufficient evidence showing the past or present existence of
such relationship between the offender and the victim when
the physical harm was committed. Consequently, the Court
cannot depart from the parallelism in Ang and give credence
to petitioner's assertion that the act of violence should be due
to the sexual or dating relationship.
Neither can the Court construe the statute in favor of petitioner
using the rule of lenity7 because there is no ambiguity in RA
9262 that would necessitate any construction. While the
degree of physical harm under RA 9262 and Article 266 8 of
the Revised Penal Code are the same, there is sufficient
justification for prescribing a higher penalty for the former.
Clearly, the legislative intent is to purposely impose a more
severe sanction on the offenders whose violent act/s physically
harm women with whom they have or had a sexual or dating
relationship, and/or their children with the end in view of
promoting the protection of women and children.
Accordingly, the Information having sufficiently alleged the
necessary elements of the crime, such as: a dating relationship
between the petitioner and the private respondent; the act of
violence committed by the petitioner; and the resulting
physical harm to private respondent, the offense is covered by
RA 9262 which falls under the jurisdiction of the RTC in
accordance with Sec. 7 of the said law which reads:
SEC. 7. Venue – The Regional Trial Court designated as a
Family Court shall have original and exclusive jurisdiction
over cases of violence against women and their children under
this law. In the absence of such court in the place where the
offense was committed, the case shall be filed in the Regional
Trial Court where the crime or any of its elements was
committed at the option of the complainant.
Finally, the Court finds the Order9 of the RTC, giving the
prosecutor a period of two (2) days to amend the Information
to reflect the cessation of the dating relationship between the
petitioner and the offended party, to be in accord with Sec. 4
of Rule 117 of the Rules of Court, to wit:
SEC. 4. Amendment of complaint or information.- If the
motion to quash is based on an alleged defect of the complaint
or information which can be cured by amendment, the court
shall order that an amendment be made.1âwphi1
Furthermore, Sec. 14 of Rule 110 of the Rules of Court
provides that an information may be amended, in form or in
substance, without leave of court, at any time before the
accused enters his plea. In the present case, the accused
petitioner has not yet been arraigned, hence, the RTC was
correct in directing the amendment of the Information and in
denying the motion to quash the same.
WHEREFORE, the petition is DISMISSED. The Orders dated
September 13, 2010 and October 5, 2010 of the Regional Trial
Court ( RTC) of Angeles City, Branch 59 in Criminal Case
No. 09-5210 are AF.FI RM ED. The Temporary Restraining
Order issued by the Court is LIFTED and the RTC is directed
to continue with the proceedings in Criminal Case No. 09-
5210.
SO ORDERED.
Footnotes
1
Pursuant to RA 9262, otherwise known as the
"Anti- Violence Against Women and Their Children
Act of 2004," and its implementing rules, the real
name of the victim, together with the names of her
immediate family members, is withheld, and
fictitious initials instead are used to represent her, to
protect her privacy.
2
Rollo, pp. 33-36. Penned by Presiding Judge Ma.
Angelica T. Paras-Quiambao.
3
Id. at 29-32.
4
Id. at 37.
5
G.R. No. 182835, April 20, 2010, 618 SCRA 592.
6
Id. at 600.
7
"Intimately intertwined with the in dubio pro reo
principle is the rule of lenity. It is the doctrine that ‘a
54
court, in construing an ambiguous criminal statute
that sets out multiple or inconsistent punishments,
should resolve the ambiguity in favor of the more
lenient punishment.’" Separate Opinion of CJ Corona
in People v.Temporada, G.R. No. 173473, December
17, 2008, citing Black's Law Dictionary, Eighth
Edition, p. 1359 (2004).

8
ART. 266. Slight physical injuries and
maltreatment.- The crime of slight physical injuries
shall be punished:

1. By arresto menor when the offender has

inflicted physical injuries which shall
incapacitate the offended party for labor
from one to nine days, or shall require
medical attendance during the same period;

2. By arresto menor or a fine not exceeding

200 pesos and censure when the offender
has caused physical injuries which do not
prevent the offended party from engaging in
his habitual work nor require medical
attendance;

3. By arresto menor in its minimum period

or a fine not exceeding 50 pesos when the
offender shall ill-treat another by deed
without causing any injury.

9
Rollo, p. 32.

55
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181973 April 17, 2013
AMELIA AQUINO, RODOLFO TAGGUEG,
JR.,* ADELAIDA HERNANDEZ and LEOPOLDO
BISCOCHO, JR.,Petitioners,
vs.
PHILIPPINE PORTS AUTHORITY, Respondent.
DECISION
PEREZ, J.:
Before this Court is a Petition for Review on Certiorari1 under
Rule 45 of the Rules of Court praying that the Decision2 dated
29 August 2007 of the Court of Appeals (CA) in CA-G.R. SP
No. 91743 be set aside. In the assailed decision, the CA
reversed the 10 August 2005 Decision3 and 15 September
2005 Order4 of the Regional Trial Court (RTC), Branch 55,
Manila.
Background of the case
The Congress of the Philippines passed on 21 August
19895 Republic Act (R.A.) No. 6758 entitled "An Act
Prescribing a Revised Compensation and Position
Classification in the Government and for Other Purposes"
otherwise known as The Salary Standardization Law.
Before the law, or on 31 August 1979, then President
Ferdinand E. Marcos issued Letter of Implementation No. 97
(LOI No. 97), authorizing the implementation of standard
compensation position classification plans for the
infrastructure/utilities group of government-owned or
controlled corporations. On the basis thereof, the Philippine
Ports Authority (PPA) issued Memorandum Circular No. 57-
87 dated 1 October 1987 which granted to its officials holding
managerial and supervisory positions representation and
transportation allowance (RATA) in an amount equivalent to
40% of their basic salary.6
Thereafter, on 23 October 1989, PPA issued Memorandum
Circular No. 36-89, which extended the RATA entitlement to
its Section Chiefs or heads of equivalent units, Terminal
Supervisors and senior personnel at the rate of 20% of their
basic pay.7 And, on 14 November 1990, PPA issued
Memorandum Circular No. 46-90, which adjusted effective 1
January 1990, the RATA authorized under Memorandum
Circular No. 36-89, from 20% to 40% based on the
standardized salary rate.8
The continued validity of the RATA grant to the maximum
ceiling of 40% of basic pay finds support from the
Opinions9 rendered by the Office of the Government
Corporate Counsel (OGCC), Department of Justice.
Finding justification in the increase in salary due these
officials brought about by the standardization mandated by
R.A. No. 6758, PPA paid RATA differentials to its officials.
The Commission on Audit (COA) Corporate Auditor,
however, in a letter dated 14 November 1990, addressed to
PPA, disallowed in post-audit the payment of the RATA
differentials. It likewise disallowed in audit the grant of
RATA to PPA Section Chiefs or heads of equivalent units,
Terminal Supervisors and senior personnel occupying
positions with salary grades of 17 and above who were
appointed after the effectivity of R.A. No. 6758.
The COA called PPA’s attention to Memorandum No. 90-679
dated 30 October 1990 which provides that "LOImp No. 97
series of 1979 implementing Compensation and Position
Classification for Infrastructure/Utilities for GOCC is replaced
by Section 16 of R.A. No. 6758." 10
In view of the disallowances, the affected PPA officials,
represented by the OGCC, filed a petition before the Supreme
Court claiming their entitlement to the RATA provided for
under LOI No. 97. The case was docketed as G.R. No. 100773
entitled "Philippine Ports Authority v. Commission on Audit,
et al."11
In a decision dated 16 October 1992, the Supreme Court ruled
in favor of the COA and declared that an official to be entitled
to the continued RATA benefit under LOI No. 97 must be an
incumbent as of 1 July 1989 and more importantly, was
receiving the RATA provided by LOI No. 97 as of 1 July
1989.
As a result of the aforesaid ruling, there are at present two
categories of managers and supervisors at the PPA. The first
category is composed of PPA officials who were occupying
their positions and actually receiving the 40% RATA under
LOI No. 97 as of 1 July 1989 and who continue to receive
such benefit. The second category consists of officials who
were not incumbents as of 1 July 1989 or were appointed or
promoted to their positions only after 1 July 1989. The second
category officials therefore receive a lesser RATA under the
General Appropriations Act although they hold the same rank,
title and may have the same responsibilities as their
counterparts in the first category.
The Case
On 26 July 2000, petitioners, who are second category PPA
officials filed a Petition for Mandamus and Prohibition before
the RTC of Manila, raffled to Branch 55. They claim anew
that they are entitled to RATA in the amount not exceeding
40% of their respective basic salaries. They anchor their
petition on recent developments allegedly brought about by
the decision of the Supreme Court in the case of De Jesus v.
Commission on Audit, et al.12which was decided almost six
56
(6) years after the Court’s decision in PPA v. COA, et
al.13 They further claim that certain issuances were released by
the COA and the Department of Budget and Management
(DBM), which in effect, extended the cut-off date in the grant
of the 40% RATA, thus entitling them to these benefits.
PPA filed a motion to dismiss on the ground of res judicata
under paragraph (f), Rule 16 of the Rules of Court. It argued
that a case involving the same parties, subject matter and
cause of action had already been resolved by this Court in
PPA v. COA, et al.14
Finding merit in PPA’s motion, the RTC ordered the dismissal
of the petition in an Order dated 8 November 2000. The
dispositive portion of the Order reads:
WHEREFORE, premises considered, the Motion to Dismiss is
hereby GRANTED, and the Petition in this case is hereby
DISMISSED on the ground that it is already barred by the
principle of res judicata.15
Petitioners elevated the case before the Supreme Court by way
of appeal under Rule 45 of the Rules of Court. The Supreme
Court, however, in a Resolution16 dated 28 March 2001
referred the case to the CA for appropriate action. The case
was docketed as CA G.R. SP No. 64702.
On 31 July 2002, a decision was rendered by the CA on the
referred case. It declared that the principle of res judicata is
not applicable to the case. The appellate court explained that
the existence of DBM and COA issuances which entitle herein
petitioners to the grant of RATA is the pertinent fact and
condition which is material to the instant case taking it away
from the domain of the principle of res judicata. 17 When new
facts or conditions intervene before the second suit, furnishing
a new basis for the claims and defenses of the party, the issues
are no longer the same; hence, the former judgment cannot be
pleaded as a bar to the subsequent action.18 At the time
judgment was rendered in the previous case, the fact and
condition now in existence, which consist of the DBM and
COA issuances, has not yet come about. In view of the
issuances, petitioners are faced with an entirely separate facts
and conditions, which make the principle of res judicata
inapplicable.19 The decision ordered the remand of the case to
the court of origin for continuation of proceedings.
After due proceedings in the trial court, a decision in favor of
petitioners was rendered on 10 August 2005. The dispositive
portion of the decision commanded respondent PPA to pay the
claim for RATA equivalent to 40% of petitioners’
standardized basic salaries authorized under LOI No. 97,
commencing from their respective dates of appointments or on
23 October 2001 when the case of Irene V. Cruz, et al. v.
COA20 was promulgated by the Supreme Court, whichever is
later.
The trial court ratiocinated that "when the Supreme Court En
Banc ruled on 23 October 2001 in the IRENE CRUZ case that
‘The date of hiring of an employee cannot be considered as a
substantial distinction,’ the so-called first (sic) category
managers and supervisors whose appointments thereto were
made after 01 July 1989 and who were effectively deprived of
the 40% RATA on account of the Supreme Court’s ruling in
the PPA v. COA, et al. case have established a clear legal right
to claim the 40% RATA under LOI No. 97 commencing on 23
October 2001, and the correlative legal duty of respondent
PPA to pay the same; thus, entitling petitioners who are
qualified to avail of the extraordinary remedy of mandamus."21
PPA raised the matter before the CA which docketed the case
as CA G.R. SP No. 91743. In a decision dated 29 August
2007, the appellate court reversed the decision of the trial
court and held:
WHEREFORE, premises considered, the August 10, 2005
Decision and the September 15, 2005 Order of the Regional
Trial Court, Branch 55, National Capital Judicial Region,
Manila, are hereby REVERSED. Accordingly, the Amended
Petition in Civil Case No. 00-98161 is hereby DISMISSED.
No costs.22
Petitioners filed a motion for reconsideration but this was
denied by the appellate court in a resolution dated 29 February
2008.
Hence, this petition assailing the 29 August 2007 decision of
the CA and its 29 February 2008 resolution.
Issues
Petitioners raise the following issues for resolution:
I. WHETHER OR NOT THE PRINCIPLE OF RES
JUDICATA IS APPLICABLE IN THE INSTANT
CASE TAKING INTO CONSIDERATION THE
FINAL DECISION OF THE COURT OF APPEALS
IN CA. G.R. SP NO. 64702.
II. WHETHER OR NOT PPA IN DENYING THE
CLAIM OF PETITIONERS FOR 40% RATA HAS
COMMITTED A VIOLATION OF THEIR
CONSTITUTIONAL RIGHT TO EQUAL
PROTECTION; AND
III. WHETHER OR NOT PETITIONERS ARE
ENTITLED TO 40% RATA AND SHOULD NOT
BE MADE TO REFUND THE RATA THEY HAD
ALREADY RECEIVED.
Petitioners’ Argument
Petitioners submit that the decision of the CA in CA G.R. SP
No. 64702 adequately cited jurisprudence and authorities on
the matter involving the issue of res judicata. Such decision of
the appellate court was not appealed by the PPA and as such,
has attained finality. In view thereof, petitioners allege that the
case of PPA v. COA, et al.23 can no longer serve as a ground
57
for the dismissal of the instant case since such would result in
"the sacrifice of justice to technicality."24
Petitioners further submit that the CA in its decision in CA
G.R. SP No. 91743 may have overlooked the significance of
the Supreme Court’s ruling in the case of De Jesus v.
Commission on Audit, et al.25 which extended the prescribed
date of effectivity of R.A. No. 6758 from 1 July 1989 to 31
October 1989, viz:
In the present case under scrutiny, it is decisively clear that
DBM-CCC No. 10, which completely disallows payment of
allowances and other additional compensation to government
officials and employees starting November 1, 1989 is not a
mere interpretative or internal regulation. It is something more
than that. And why not, when it tends to deprive government
workers of their allowances and additional compensation
sorely needed to keep body and soul together. x x x
Petitioners claim that the DBM, which is the agency tasked to
implement R.A. No. 6758, amplified this extension in its 4
May 1992 letter to the Administrator of the National
Electrification Administration (NEA). The pertinent portion of
the letter reads:
DBM has authorized certain GOCCs/GFIs to grant also to
officials and employees hired between the period of July 1,
1989 and October 31, 1989 the allowances and fringe benefit
enumerated in said Item 5.5 of CCC No. 10.
At this juncture it is pertinent to point out that although the
effectivity date prescribed in R.A. No. 6758 is July 1, 1989,
said Act and its implementing circulars were formally
promulgated only in the later part of October 1989. The
preparation of all required documents, more particularly the
Index of Occupational Services (IOS) and the Position
Allocation List (PAL) for the GOCCs/GFIs was completed at
much later date. Thus, within the period of transition from
July 1, 1989 up to the date of completion of all the required
documents for the actual implementation by each GOCC/GFI
of said salary standardization, flexibility in the interpretation
of rules and regulations prescribed under R.A. 6758 was
necessary. DBM felt it illogical to assume that during the
period R.A. 6758 was not yet issued all GOCCs/GFIs were
already aware of what implementing guidelines it (DBM) will
prescribe and have their personnel actions accordingly
adjusted to said guidelines. Likewise, it is counter-productive
if at that time, we advised all GOCCs/GFIs to suspend their
personnel actions as same could be disruptive to their
operations and delay the completion of important projects.
Premised on the above considerations, we maintain the
position that our action allowing officials and employees hired
between the period of July 1, 1989 and October 31, 1989 to be
paid allowances under Item No. 5.5 of CCC No. 10 is
logically tenable and reasonable since same was made during
the "transitory period" from the old system to the new
system.26
They further claim that even the COA took cognizance of this
extension in the memorandum27 issued by the officer-in-
charge of the COA Audit Office, to wit:
Moreover, this office gives much weight to the position of the
Secretary, DBM in his letter to the Administrator, NEA, dated
October 30, 1993 that the cut-off date of July 1, 1989
prescribed in R.A. 6758/CCC #10 was extended to October
31, 1989 primarily on consideration that said R.A. 6758/CCC
#10 were formally issued/promulgated only in the later part of
October 1989. x x x
Petitioners likewise raised as their cause of action the violation
of their constitutional right to equal protection of the law.
They contend that this alone would constitute sufficient
justification for the filing anew of the instant petition.
Contrary to the statement in the assailed decision of the CA to
the effect that they failed to plead or raise such issue in the
trial court, they submit that a perusal of their amended petition
would show that paragraphs 30, 31, 32 and 33 thereof were
devoted to that issue.
Finally, as regards the matter of refund of the RATA being
demanded by COA, petitioners submit that they should not be
required to make such refund since these were received in
good faith and on the honest belief that they were entitled to it.
PPA’s Argument
Respondent PPA maintains that PPA employees who were
appointed to managerial and supervisory positions after the
effectivity of RA No. 6758 are not entitled to the 40% RATA
benefit provided under LOI No. 97. Consistent with the ruling
of the Court in PPA v. COA, et al.,28 respondent PPA contends
that only the first category officials or those who were granted
and were receiving RATA equivalent to 40% of their salaries
prior to 1 July 1989 are entitled to such benefits. Petitioners
who are included in the second category officials or those who
are not incumbents as of 1 July 1989 are not entitled to the
40% RATA benefit provided under LOI No. 97.
Our Ruling
There is merit in petitioners’ argument that their petition
should not be dismissed on the ground of res judicata since
this is based on jurisprudence and issuances not yet in
existence at the time of the promulgation of the Court’s
decision in PPA v. COA, et al.29 Petitioners are, however,
incorrect in their contention that the decision of the appellate
court in CA-G.R. SP No. 64702 which was not appealed by
the PPA has become final and as such, barred the appellate
court’s subsequent ruling in CA-G.R. SP No. 91743.
We note that when the petition was elevated to the CA in the
first instance in CA-G.R. SP No. 64702, the matter submitted
to be resolved by the appellate court was simply the issue on
whether the trial court was correct in granting the motion to
dismiss and in declaring that the case is barred by the principle
of res judicata. Despite the non-appeal by PPA of the appellate
58
court’s ruling that res judicata is not applicable, the case did
not attain finality in view of the order of the CA remanding
the case to the trial court for continuation of hearing. The
appellate court’s ruling in CA G.R. SP No. 91743, therefore,
was not barred by the ruling in CA G.R. SP No. 64702 since
the ruling in the second instance was already a ruling after trial
on the merits.
Although the principle of res judicata is not applicable, the
petition must still fail because our ruling must adhere to the
doctrine of stare decisis. In Chinese Young Men's Christian
Association of the Philippine Islands v. Remington Steel
Corporation,30 the Court expounded on the importance of this
doctrine in securing certainty and stability of judicial
decisions, thus:
Time and again, the court has held that it is a very desirable
and necessary judicial practice that when a court has laid
down a principle of law as applicable to a certain state of facts,
it will adhere to that principle and apply it to all future cases in
which the facts are substantially the same. Stare decisis et non
quieta movere. Stand by the decisions and disturb not what is
settled. Stare decisis simply means that for the sake of
certainty, a conclusion reached in one case should be applied
to those that follow if the facts are substantially the same, even
though the parties may be different. It proceeds from the first
principle of justice that, absent any powerful countervailing
considerations, like cases ought to be decided alike. Thus,
where the same questions relating to the same event have been
put forward by the parties similarly situated as in a previous
case litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to relitigate the same issue.
(Emphasis supplied)
The issues raised by petitioners are no longer novel. In a
catena of Cases31 promulgated after De Jesus v. COA32 and
Cruz v. COA,33 this Court has ruled that the pronouncement it
has established in the earlier case of PPA v. COA, et al. 34 with
regard to the interpretation and application of Section 12 of
RA 6758 is still applicable. The subsequent decisions
maintained that allowances or fringe benefits, whether or not
integrated into the standardized salaries prescribed by R.A.
6758, should continue to be enjoyed only by employees who
(1) were incumbents and (2) were receiving those benefits as
of 1 July 1989.
In those cases, the Court reiterated that the intention of the
framers of the law was to phase out certain allowances and
privileges gradually, without upsetting the principle of non-
diminution of pay. The intention of Section 12 to protect
incumbents who were already receiving those allowances on 1
July 1989, when RA 6758 took effect was emphasized thus:
An incumbent is a person who is in present possession of an
office.
The consequential outcome, under sections 12 and 17, is that
if the incumbent resigns or is promoted to a higher position,
his successor is no longer entitled to his predecessor’s RATA
privilege x x x or to the transition allowance.
Finally, to explain what July 1, 1989 pertained to, we held in
the same case as follows:
x x x. The date July 1, 1989 becomes crucial only to determine
that as of said date, the officer was an incumbent and was
receiving the RATA, for purposes of entitling him to its
continued grant. x x x.
In Philippine International Trading Corporation v. COA, the
Court confirmed the legislative intention in this wise:
x x x There was no intention on the part of the legislature to
revoke existing benefits being enjoyed by incumbents of
government positions at the time of the passage of RA 6758
by virtue of Sections 12 and 17 thereof. x x x.
The Court stressed that in reserving the benefits to incumbents
alone, the legislature’s intention was not only to adhere to the
policy of non-diminution of pay, but also to be consistent with
the prospective application of laws and the spirit of fairness
and justice.35 (Emphasis omitted)
xxxx
The disquisition of the Court in Philippine National Bank v.
Palma36 is instructive, viz:
The reliance of the court a quo on Cruz v. COA is misplaced.
It was held in that case that the specific date of hiring, October
31, 1989, had been not only arbitrarily determined by the
COA, but also used as an unreasonable and unsubstantial basis
for awarding allowances to employees. The basis for the
Court’s ruling was not primarily the resulting disparity in
salaries received for the same work rendered but, more
important, the absence of a distinction in the law that allowed
the grant of such benefits -- between those hired before and
those after the said date.
Thus, setting a particular date as a distinction was nullified,
not because it was constitutionally infirm or was against the
"equal pay for equal work" policy of RA 6758. Rather, the
reason was that the COA had acted without or in excess of its
authority in arbitrarily choosing October 31, 1989, as the
cutoff date for according the allowances. It was explained that
"when the law does not distinguish, neither should the court."
And for that matter, neither should the COA.
In consonance with stare decisis, there should be no more
misgivings about the proper application of Section 12. In the
present case, the payment of benefits to employees hired after
July 1, 1989, was properly withheld, because the law clearly
mandated that those benefits should be reserved only to
incumbents who were already enjoying them before its
enactment. Withholding them from the others ensured that the
compensation of the incumbents would not be diminished in
59
the course of the latter’s continued employment with the
government agency.
It bears emphasis also that in promulgating the Irene Cruz
case, there was no intention on the part of the Court to
abandon its earlier ruling in PPA v. COA, et al. 37 The factual
circumstances in the former case are different from those
attendant in the case of herein petitioners. In fine, the Irene
Cruz case is not on all fours with the present case. The
petitioners in the former case, who were employees of the
Sugar Regulatory Administration, were able to obtain from the
Office of the President a post facto approval or ratification of
their social amelioration benefit.1âwphi1No such authority
granted by the Office of the President has been presented by
the second category officials of the PPA.
Petitioners further invoked that the denial of their claim of
40% RATA violated their constitutional right to equal
protection of the laws. We note that the Constitution does not
require that things which are different in fact be treated in law
as though they were the same. The equal protection clause
does not prohibit discrimination as to things that are different.
It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it
is to operate.38
The equal protection of the laws clause of the Constitution
allows classification. x x x. A law is not invalid simply
because of simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification
should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class.39
As explained earlier, the different treatment accorded the
second sentence (first paragraph) of Section 12 of RA 6758 to
the incumbents as of 1 July 1989, on one hand, and those
employees hired on or after the said date, on the other, with
respect to the grant of non-integrated benefits lies in the fact
that the legislature intended to gradually phase out the said
benefits without, however, upsetting its policy of non-
diminution of pay and benefits.40
The consequential outcome under Sections 12 and 17 is that if
the incumbent resigns or is promoted to a higher position, his
successor is no longer entitled to his predecessor’s RATA
privilege or to the transition allowance. After 1 July 1989, the
additional financial incentives such as RATA may no longer
be given by the GOCCs with the exemption of those which
were authorized to be continued under Section 12 of RA
6758.41
Therefore, the aforesaid provision does not infringe the equal
protection clause of the Constitution as it is based on
reasonable classification intended to protect the rights of the
incumbents against diminution of their pay and benefits.42
Anent the issue of refund, we note that petitioners were
referring to the RAT A received by the second category
officials pursuant to PPA Memorandum Circular No. 36-89
dated 23 October 1989 and PPA Memorandum Circular No.
46-90 dated 14 November 1990. We deem it 110 longer
necessary to discuss this issue considering that it was already
ruled upon in the earlier PPA case and was even part of the
dispositive portion43 of the decision which became final and
executory. Well-settled is the rule that once a judgment
becomes final and executory, it can no longer be disturbed,
altered, or modified in any respect. It is essential to an
effective administration of justice that once a judgment has
become final, the issue or cause therein should be laid to
rest.44 The arguments of petitioners regarding this issue should
have been raised in that case and not in this present petition.
We conclude this case with the words borrowed from former
Chief Justice Artemio V. Panganiban:
During these tough economic times, this Court understands,
and in fact sympathizes with, the plight of ordinary
government employees. Whenever legally possible, it has bent
over backwards to protect labor and favor it with additional
economic advantages. In the present case, however, the Salary
Standardization Law clearly provides that the claimed benefits
shall continue to be granted only to employees who were
"incumbents" as of July 1, 1989. Hence, much to its regret, the
Court has no authority to reinvent or modify the law to extend
those benefits even to employees hired after that date. 45
WHEREFORE, the instant Petition for Review on Ce11iorari
is DENIED. The Decision dated 29 August 2007 and
Resolution dated 29 February 2008 of the Court Appeals in
CA-G.R. SP No. 91743 are AFFIRMED. No pronouncement
as to costs.
SO ORDERED.
Footnotes
* The certificate against forum shopping stated
"RODOLFO TAGGUEG, JR." instead of
"ALFONSO TAGGUEG, JR."
1
Rollo, pp. 9-34.
2
Id. at 35-44. Penned by Associate Justice
Normandie B. Pizzaro with Associate Justice
Edgardo P. Cruz and Fernanda Lampas Peralta
concurring.
3
Id. at 47-58. Penned by Acting Presiding Judge
Manuel M. Barrios.
4
Records, pp. 582-583.
60
5 29
Date enacted; Date of effectivity is 1 July 1989. Id.

6 30
Rollo, p. 15. G.R. No. 159422, 28 March 2008, 550 SCRA 180,
197-198.
7
Id.
31
Social Security System v. COA, 433 Phil. 946
8
Id. at 16 (2002); Ambros v. COA, 501 Phil. 255 (2005); PNB
v. Palma, 503 Phil. 917 (2005); Agra, et al. v. COA,
9 G.R. No. 167807, 6 December 2011, 661 SCRA 563.
Id. Nos. 059 and 108 dated 14 March 1990 and 11
March 1990, respectively as well as No. 68 dated 23
32
March 1990. Supra note 12.

33
10
Id. Supra note 20.

34
11
G.R. No. 100773, 16 October 1992, 214 SCRA Supra note 11.
653.
35
Agra et. al. v. COA, G.R. No. 167807, 6 December
12
355 Phil. 584 (1998). 2011, 661 SCRA 563, 585-586.

36
13
Supra note 11. 503 Phil. 917, 931-932 (2005).

37
14
Id. Supra note 11.

38
15
Rollo, p. 93. CA Decision in CA-G.R. SP No. Ambros v. COA, 501 Phil. 255, 278 (2005).
64702.
39
Id.
16
Id. at 165.
40
Id.
17
Id. at 101.
41
Social Security System v. COA, supra note 31 at
18
Id. at 101-102 citing Lord v. Garland, 168 P. 2d 5 959.
(1946); Rhodes v. Van Steenberg, 225 F. Supp. 113
42
(1963); Cowan v. Gulf City Fisheries, Inc., 381 So. Id.
2d 158 (1980).
43
PPA v. COA, et al., supra note 11.
19
Id. at 102.
44
Aurora Tamayo v. People, G.R. No. 174698, 28
20
420 Phil. 103 (2001). July 2008, 560 SCRA 312, 323.

21 45
Rollo, p. 57. Philippine National Bank v. Palma, supra note 36
at 920.
22
Id. at 44.

23
Supra note 11.

24
Rollo, pp. 153-154. Memorandum of petitioners.

25
Supra note 12 at 590-591.

26
Rollo, p. 157.

27
Id. at 158.

28
Supra note 11.

61
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI,
LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY
OF THE DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE and
THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and
PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG
MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
BERTENI "TOTO" CAUSING, HERNANI Q. CUARE,
PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO,
ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President
Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.
GISELA ORDENES-CASCOLAN, H. HARRY L.
ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT
OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE
NATIONAL BUREAU OF INVESTIGATION, THE
PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE
AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO
TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS
OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary
of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY
GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned
Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E.
PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE,
JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the
Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented
by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS
62
NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A.
BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of
the Interior and Local Government,Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M.
CANDELARIA, AMPARITA STA. MARIA, RAY
PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and
RYAN JEREMIAH D. QUAN (all of the Ateneo Human
Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as
Executive Secretary, HONORABLE LEILA DE LIMA in
her capacity as Secretary of Justice, HONORABLE
MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The
CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the
Executive Department of Government),Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), PHILIPPINE PRESS
INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA
PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH
ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION
http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF THE INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF
BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE,
THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER,
AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER
THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF
REPUBLIC ACT NO. 10175,Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D.
ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON.
SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V.
ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS;
MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS
SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR;
and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON.
JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES,
represented by FELICIANO R. BELMONTE, JR., in his
capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her
capacity as Secretary of Justice; HON. LOUIS
NAPOLEON C. CASAMBRE, in his capacity as Executive
Director, Information and Communications Technology
Office; HON. NONNATUS CAESAR R. ROJAS, in his
capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his
capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his
official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and
Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director of
the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official
63
capacity as Chief of the Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA,
JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO
SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE
PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE,
composed of DAKILA-PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco,
PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON
ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN
G.M. RAGRAGIO, MARIA FATIMA A. VILLENA,
MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA
SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI
L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF
SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY
OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF,
PHILIPPINE NATIONAL POLICE, THE HEAD OF
THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions
of Republic Act (R.A.) 10175, the Cybercrime Prevention Act
of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the
cyberspace. Using his laptop or computer, a person can
connect to the internet, a system that links him to other
computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all
kinds of information that he needs for research,
study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including
pictures and videos, for the general public or for
special audiences like associates, classmates, or
friends and read postings from them;
3. Advertise and promote goods or services and make
purchases and payments;
4. Inquire and do business with institutional entities
like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities,
hospitals, and schools; and
5. Communicate in writing or by voice with any
person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and
billions of simultaneous and ongoing individual accesses to
and uses of the internet. The cyberspace is a boon to the need
of the current generation for greater information and facility of
communication. But all is not well with the system since it
could not filter out a number of persons of ill will who would
want to use cyberspace technology for mischiefs and crimes.
One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by
posting defamatory statements against him that people can
read.
And because linking with the internet opens up a user to
communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or
surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can
64
use the cyberspace, too, for illicit trafficking in sex or for j. Section 6 on the Penalty of One Degree Higher;
exposing to pornography guileless children who have access
to the internet. For this reason, the government has a k. Section 7 on the Prosecution under both the
legitimate right to regulate the use of cyberspace and contain Revised Penal Code (RPC) and R.A. 10175;
and punish wrongdoings.
l. Section 8 on Penalties;
Notably, there are also those who would want, like vandals, to
wreak or cause havoc to the computer systems and networks m. Section 12 on Real-Time Collection of Traffic
of indispensable or highly useful institutions as well as to the
Data;
laptop or computer programs and memories of innocent
individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer n. Section 13 on Preservation of Computer Data;
systems, networks, programs, and memories. The government
certainly has the duty and the right to prevent these o. Section 14 on Disclosure of Computer Data;
tomfooleries from happening and punish their perpetrators,
hence the Cybercrime Prevention Act. p. Section 15 on Search, Seizure and Examination of
Computer Data;
But petitioners claim that the means adopted by the
cybercrime law for regulating undesirable cyberspace q. Section 17 on Destruction of Computer Data;
activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to r. Section 19 on Restricting or Blocking Access to
reasonably put order into cyberspace activities, punish Computer Data;
wrongdoings, and prevent hurtful attacks on the system.
s. Section 20 on Obstruction of Justice;
Pending hearing and adjudication of the issues presented in
these cases, on February 5, 2013 the Court extended the
t. Section 24 on Cybercrime Investigation and
original 120-day temporary restraining order (TRO) that it
Coordinating Center (CICC); and
earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law
until further orders. u. Section 26(a) on CICC’s Powers and Functions.

The Issues Presented Some petitioners also raise the constitutionality of related
Articles 353, 354, 361, and 362 of the RPC on the crime of
libel.
Petitioners challenge the constitutionality of the following
provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as The Rulings of the Court
provisions that would enable the government to track down
and penalize violators. These provisions are: Section 4(a)(1)

a. Section 4(a)(1) on Illegal Access; Section 4(a)(1) provides:

b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:

e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial
Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the
Commission of Cybercrimes;
(1) Illegal Access. – The access to the whole or any part of a
computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict
scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck
down.
The Court has in a way found the strict scrutiny standard, an
American constitutional construct,1 useful in determining the
constitutionality of laws that tend to target a class of things or
65
persons. According to this standard, a legislative classification
that impermissibly interferes with the exercise of fundamental
right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the
government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least
restrictive means to protect such interest.2 Later, the strict
scrutiny standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or race as well
as other fundamental rights, as expansion from its earlier
applications to equal protection.3
In the cases before it, the Court finds nothing in Section
4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is
involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a
universally condemned conduct.4
Petitioners of course fear that this section will jeopardize the
work of ethical hackers, professionals who employ tools and
techniques used by criminal hackers but would neither damage
the target systems nor steal information. Ethical hackers
evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give
instructions for how these can be remedied. Ethical hackers
are the equivalent of independent auditors who come into an
organization to verify its bookkeeping records. 5
Besides, a client’s engagement of an ethical hacker requires an
agreement between them as to the extent of the search, the
methods to be used, and the systems to be tested. This is
referred to as the "get out of jail free card." 6Since the ethical
hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section
4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration,
damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right,
including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth
in that, while it seeks to discourage data interference, it
intrudes into the area of protected speech and expression,
creating a chilling and deterrent effect on these guaranteed
freedoms.
Under the overbreadth doctrine, a proper governmental
purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject
broadly, thereby invading the area of protected freedoms.7 But
Section 4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism,8 the
act of willfully destroying without right the things that belong
to others, in this case their computer data, electronic
document, or electronic data message. Such act has no
connection to guaranteed freedoms. There is no freedom to
destroy other people’s computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an
inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who
are minded to step beyond the boundaries of what is proper.
But to prevent the State from legislating criminal laws because
they instill such kind of fear is to render the state powerless in
addressing and penalizing socially harmful conduct.10 Here,
the chilling effect that results in paralysis is an illusion since
Section 4(a)(3) clearly describes the evil that it seeks to punish
and creates no tendency to intimidate the free exercise of
one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the
heavy burden of proving that under no set of circumstances
will Section 4(a)(3) be valid.11 Petitioner has failed to
discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name over
the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if
such a domain name is:
(i) Similar, identical, or confusingly similar to an
existing trademark registered with the appropriate
government agency at the time of the domain name
registration;
(ii) Identical or in any way similar with the name of a
person other than the registrant, in case of a personal
name; and
(iii) Acquired without right or with intellectual
property interests in it.
66
Petitioners claim that Section 4(a)(6) or cyber-squatting
violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to
suffer the same fate as those who use aliases or take the name
of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-
philanthropist named "Julio Gandolfo," the law would punish
for cyber-squatting both the person who registers such name
because he claims it to be his pseudo-name and another who
registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction
between the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio
Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the
name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are
not ill-motivated of the rightful opportunity of registering the
same. The challenge to the constitutionality of Section 4(a)(6)
on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional
acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be
one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the
constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and
seizures.13 But the Court acknowledged its existence as early
as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy
exists independently of its identification with liberty; it is in
itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the
concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ
of Habeas Corpus of Sabio v. Senator Gordon" 15 the relevance
of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws.
Within these zones, any form of intrusion is impermissible
unless excused by law and in accordance with customary legal
process. The meticulous regard we accord to these zones
arises not only from our conviction that the right to privacy is
a "constitutional right" and "the right most valued by civilized
men," but also from our adherence to the Universal
Declaration of Human Rights which mandates that, "no one
shall be subjected to arbitrary interference with his privacy"
and "everyone has the right to the protection of the law against
such interference or attacks."
Two constitutional guarantees create these zones of privacy:
(a) the right against unreasonable searches16 and seizures,
which is the basis of the right to be let alone, and (b) the right
to privacy of communication and correspondence.17 In
assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated
by unreasonable government intrusion.18
The usual identifying information regarding a person includes
his name, his citizenship, his residence address, his contact
number, his place and date of birth, the name of his spouse if
any, his occupation, and similar data.19 The law punishes those
who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show
how government effort to curb computer-related identity theft
violates the right to privacy and correspondence as well as the
right to due process of law.
Also, the charge of invalidity of this section based on the
overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms
like speech. Clearly, what this section regulates are specific
actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to
acquire another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the
freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the
news to secure information about him that could be published.
But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity
information must be intended for an illegitimate purpose.
Moreover, acquiring and disseminating information made
public by the user himself cannot be regarded as a form of
theft.
The Court has defined intent to gain as an internal act which
can be established through the overt acts of the offender, and it
may be presumed from the furtive taking of useful property
pertaining to another, unless special circumstances reveal a
different intent on the part of the perpetrator.20 As such, the
67
press, whether in quest of news reporting or social
investigation, has nothing to fear since a special circumstance
is present to negate intent to gain which is required by this
Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute
the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control,
or operation, directly or indirectly, of any lascivious exhibition
of sexual organs or sexual activity, with the aid of a computer
system, for favor or consideration.
Petitioners claim that the above violates the freedom of
expression clause of the Constitution.21 They express fear that
private communications of sexual character between husband
and wife or consenting adults, which are not regarded as
crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the
term "favor" includes "gracious kindness," "a special privilege
or right granted or conceded," or "a token of love (as a ribbon)
usually worn conspicuously."22 This meaning given to the
term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the
bedrooms of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress
on this section of the Cybercrime Prevention Act give a proper
perspective on the issue. These deliberations show a lack of
intent to penalize a "private showing x x x between and among
two private persons x x x although that may be a form of
obscenity to some."23 The understanding of those who drew up
the cybercrime law is that the element of "engaging in a
business" is necessary to constitute the illegal cybersex.24 The
Act actually seeks to punish cyber prostitution, white slave
trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by
webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual
organs or sexual activity—is not novel. Article 201 of the RPC
punishes "obscene publications and exhibitions and indecent
shows." The Anti-Trafficking in Persons Act of 2003
penalizes those who "maintain or hire a person to engage in
prostitution or pornography." 26 The law defines prostitution as
any act, transaction, scheme, or design involving the use of a
person by another, for sexual intercourse or lascivious conduct
in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which
the State can regulate materials that serve no other purpose
than satisfy the market for violence, lust, or
pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if
containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through
internet connection, perceived by some as a right, has to be
balanced with the mandate of the State to eradicate white
slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of
jurisprudence delineating the bounds of obscenity.30 The Court
will not declare Section 4(c)(1) unconstitutional where it
stands a construction that makes it apply only to persons
engaged in the business of maintaining, controlling, or
operating, directly or indirectly, the lascivious exhibition of
sexual organs or sexual activity with the aid of a computer
system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts
defined and punishable by Republic Act No. 9775 or the Anti-
Child Pornography Act of 2009, committed through a
computer system: Provided, That the penalty to be imposed
shall be (1) one degree higher than that provided for in
Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-
Child Pornography Act of 200931 (ACPA) to cover identical
activities in cyberspace. In theory, nothing prevents the
government from invoking the ACPA when prosecuting
persons who commit child pornography using a computer
system. Actually, ACPA’s definition of child pornography
already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has
questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree
when the crime is committed in cyberspace. But no one can
complain since the intensity or duration of penalty is a
legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation
of a particular piece of child pornography when uploaded in
the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it
unlawful for any person to "produce, direct, manufacture or
68
create any form of child pornography"33 clearly relates to the
prosecution of persons who aid and abet the core offenses that
ACPA seeks to punish.34 Petitioners are wary that a person
who merely doodles on paper and imagines a sexual abuse of a
16-year-old is not criminally liable for producing child
pornography but one who formulates the idea on his laptop
would be. Further, if the author bounces off his ideas on
Twitter, anyone who replies to the tweet could be considered
aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply
commenting on it will be discussed elsewhere below. For now
the Court must hold that the constitutionality of Section
4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The
transmission of commercial electronic communication with
the use of computer system which seeks to advertise, sell, or
offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the
recipient; or
(ii) The primary intent of the communication is for
service and/or administrative announcements from
the sender to its existing users, subscribers or
customers; or
(iii) The following conditions are present:
(aa) The commercial electronic
communication contains a simple, valid, and
reliable way for the recipient to reject
receipt of further commercial electronic
messages (opt-out) from the same source;
(bb) The commercial electronic
communication does not purposely disguise
the source of the electronic message; and
(cc) The commercial electronic
communication does not purposely include
misleading information in any part of the
message in order to induce the recipients to
read the message.
The above penalizes the transmission of unsolicited
commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive
fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred
to a Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam" when
reading options from a menu.35
The Government, represented by the Solicitor General, points
out that unsolicited commercial communications or spams are
a nuisance that wastes the storage and network capacities of
internet service providers, reduces the efficiency of commerce
and technology, and interferes with the owner’s peaceful
enjoyment of his property. Transmitting spams amounts to
trespass to one’s privacy since the person sending out spams
enters the recipient’s domain without prior permission. The
OSG contends that commercial speech enjoys less protection
in law.
But, firstly, the government presents no basis for holding that
unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of
computers, have already been receiving such unsolicited ads
by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that
the recipient has the option of not opening or reading these
mail ads. That is true with spams. Their recipients always have
the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a
person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a
separate category of speech which is not accorded the same
level of protection as that given to other constitutionally
guaranteed forms of expression but is nonetheless entitled to
protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of
expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code
provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary,
or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one
who is dead.
69
Art. 354. Requirement for publicity. — Every defamatory
imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown,
except in the following cases:
1. A private communication made by any person to
another in the performance of any legal, moral or
social duty; and
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial, legislative
or other official proceedings which are not of
confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other
act performed by public officers in the exercise of
their functions.
Art. 355. Libel means by writings or similar means. — A libel
committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand,
merely incorporates to form part of it the provisions of the
RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute
the offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as
defined in Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other similar
means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and,
in effect, the libel provisions of the cybercrime law carry with
them the requirement of "presumed malice" even when the
latest jurisprudence already replaces it with the higher
standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed
malice" from the accused’s defamatory statement by virtue of
Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on
libel should be stricken down as unconstitutional for otherwise
good jurisprudence requiring "actual malice" could easily be
overturned as the Court has done in Fermin v. People39 even
where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable
act or condition concerning another; (b) publication of the
charge; (c) identity of the person defamed; and (d) existence
of malice.40
There is "actual malice" or malice in fact41 when the offender
makes the defamatory statement with the knowledge that it is
false or with reckless disregard of whether it was false or
not.42 The reckless disregard standard used here requires a
high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in
fact entertained serious doubts as to the truth of the statement
he published. Gross or even extreme negligence is not
sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of
actual malice in instances where such element is required to
establish guilt. The defense of absence of actual malice, even
when the statement turns out to be false, is available where the
offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the
Executive Director, First National Conference on Land
Transportation). Since the penal code and implicitly, the
cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of
"malice" to convict the author of a defamatory statement
where the offended party is a public figure. Society’s interest
and the maintenance of good government demand a full
discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its
ruling in Fermin disregarded the higher standard of actual
malice or malice in fact when it found Cristinelli Fermin
guilty of committing libel against complainants who were
public figures. Actually, the Court found the presence of
malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the
motive to make defamatory imputations against complainants.
Thus, petitioner cannot, by simply making a general denial,
convince us that there was no malice on her part. Verily, not
only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to
talk ill against complainants during the electoral campaign.
(Emphasis ours)
Indeed, the Court took into account the relatively wide leeway
given to utterances against public figures in the above case,
cinema and television personalities, when it modified the
penalty of imprisonment to just a fine ofP6,000.00.
But, where the offended party is a private individual, the
prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the
defamatory character of the assailed statement.45For his
70
defense, the accused must show that he has a justifiable reason
for the defamatory statement even if it was in fact true. 46
Petitioners peddle the view that both the penal code and the
Cybercrime Prevention Act violate the country’s obligations
under the International Covenant of Civil and Political Rights
(ICCPR). They point out that in Adonis v. Republic of the
Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that
penal defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the
defamatory statement should constitute an all-encompassing
defense. As it happens, Article 361 recognizes truth as a
defense but under the condition that the accused has been
prompted in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution
for libel, the truth may be given in evidence to the court and if
it appears that the matter charged as libelous is true, and,
moreover, that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the
imputation shall have been made against Government
employees with respect to facts related to the discharge of
their official duties.
In such cases if the defendant proves the truth of the
imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines,
as petitioners urge, to decriminalize libel. It simply suggested
that defamation laws be crafted with care to ensure that they
do not stifle freedom of expression.48Indeed, the ICCPR states
that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free
speech is not absolute. It is subject to certain restrictions, as
may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a
constitutionally protected speech and that the government has
an obligation to protect private individuals from defamation.
Indeed, cyberlibel is actually not a new crime since Article
353, in relation to Article 355 of the penal code, already
punishes it. In effect, Section 4(c)(4) above merely affirms
that online defamation constitutes "similar means" for
committing libel.
But the Court’s acquiescence goes only insofar as the
cybercrime law penalizes the author of the libelous statement
or article. Cyberlibel brings with it certain intricacies, unheard
of when the penal code provisions on libel were enacted. The
culture associated with internet media is distinct from that of
print.
The internet is characterized as encouraging a freewheeling,
anything-goes writing style.50 In a sense, they are a world
apart in terms of quickness of the reader’s reaction to
defamatory statements posted in cyberspace, facilitated by
one-click reply options offered by the networking site as well
as by the speed with which such reactions are disseminated
down the line to other internet users. Whether these reactions
to defamatory statement posted on the internet constitute
aiding and abetting libel, acts that Section 5 of the cybercrime
law punishes, is another matter that the Court will deal with
next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also
constitute an offense:
(a) Aiding or Abetting in the Commission of
Cybercrime. – Any person who willfully abets or aids
in the commission of any of the offenses enumerated
in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. —
Any person who willfully attempts to commit any of
the offenses enumerated in this Act shall be held
liable.
Petitioners assail the constitutionality of Section 5 that renders
criminally liable any person who willfully abets or aids in the
commission or attempts to commit any of the offenses
enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected
expression.
The Solicitor General contends, however, that the current
body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens,"
the multitude that avail themselves of the services of the
internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues
that plain, ordinary, and common usage is at times sufficient
to guide law enforcement agencies in enforcing the law.51 The
legislature is not required to define every single word
contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and
application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into
the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of
common sense and human experience.
But, when it comes to certain cybercrimes, the waters are
muddier and the line of sight is somewhat blurred. The idea of
71
"aiding or abetting" wrongdoings online threatens the
heretofore popular and unchallenged dogmas of cyberspace
use.
According to the 2011 Southeast Asia Digital Consumer
Report, 33% of Filipinos have accessed the internet within a
year, translating to about 31 million users.55 Based on a recent
survey, the Philippines ranks 6th in the top 10 most engaged
countries for social networking.56 Social networking sites
build social relations among people who, for example, share
interests, activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and
Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this
site, create a personal profile or an open book of who they are,
add other users as friends, and exchange messages, including
automatic notifications when they update their profile.59 A
user can post a statement, a photo, or a video on Facebook,
which can be made visible to anyone, depending on the user’s
privacy settings.
If the post is made available to the public, meaning to
everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of
preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes
the posting while "Comment" enables him to post online his
feelings or views about the same, such as "This is great!"
When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook
Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read
short text-based messages of up to 140 characters. These are
known as "Tweets." Microblogging is the practice of posting
small pieces of digital content—which could be in the form of
text, pictures, links, short videos, or other media—on the
internet. Instead of friends, a Twitter user has "Followers,"
those who subscribe to this particular user’s posts, enabling
them to read the same, and "Following," those whom this
particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets
available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet"
a given posting. Retweeting is just reposting or republishing
another person’s tweet without the need of copying and
pasting it.
In the cyberworld, there are many actors: a) the blogger who
originates the assailed statement; b) the blog service provider
like Yahoo; c) the internet service provider like PLDT, Smart,
Globe, or Sun; d) the internet café that may have provided the
computer used for posting the blog; e) the person who makes a
favorable comment on the blog; and f) the person who posts a
link to the blog site.60 Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service provider).
She needs the internet to access her blog so she subscribes to
Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement
that a certain married public official has an illicit affair with a
movie star. Linda, one of Maria’s friends who sees this post,
comments online, "Yes, this is so true! They are so immoral."
Maria’s original post is then multiplied by her friends and the
latter’s friends, and down the line to friends of friends almost
ad infinitum. Nena, who is a stranger to both Maria and Linda,
comes across this blog, finds it interesting and so shares the
link to this apparently defamatory blog on her Twitter account.
Nena’s "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s
"Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends
start Liking and making Comments on the assailed posting. A
lot of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands,
and greater postings.
The question is: are online postings such as "Liking" an
openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or
abetting?" In libel in the physical world, if Nestor places on
the office bulletin board a small poster that says, "Armand is a
thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by
and noticing the poster, writes on it, "Correct!," would that be
libel? No, for he merely expresses agreement with the
statement on the poster. He still is not its author. Besides, it is
not clear if aiding or abetting libel in the physical world is a
crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a
social networking site. Would a reader and his Friends or
Followers, availing themselves of any of the "Like,"
"Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the
rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think
little or haphazardly of their response to the original posting.
Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of
responding "Friends" or "Followers" in the criminal charge to
be filed in court, who will make a choice as to who should go
to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel
would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law
that takes into account its unique circumstances and culture,
such law will tend to create a chilling effect on the millions
72
that use this new medium of communication in violation of
their constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same issue in
Reno v. American Civil Liberties Union,61 a case involving
the constitutionality of the Communications Decency Act of
1996. The law prohibited (1) the knowing transmission, by
means of a telecommunications device, of
"obscene or indecent" communications to any recipient under
18 years of age; and (2) the knowing use of an interactive
computer service to send to a specific person or persons under
18 years of age or to display in a manner available to a person
under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by
contemporary community standards, sexual or excretory
activities or organs.
Those who challenged the Act claim that the law violated the
First Amendment’s guarantee of freedom of speech for being
overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996
(CDA), 47 U.S.C.S. §223, is a matter of special concern for
two reasons. First, the CDA is a content-based regulation of
speech. The vagueness of such a regulation raises special U.S.
Const. amend. I concerns because of its obvious chilling effect
on free speech. Second, the CDA is a criminal statute. In
addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties
including up to two years in prison for each act of violation.
The severity of criminal sanctions may well cause speakers to
remain silent rather than communicate even arguably unlawful
words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const.
amend. I concerns than those implicated by certain civil
regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47
U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague
contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to
constitutional protection. That danger provides further reason
for insisting that the statute not be overly broad. The CDA’s
burden on protected speech cannot be justified if it could be
avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image
with just one click of the mouse. Scurrilous statements can
spread and travel fast across the globe like bad news.
Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and
friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this
cyberspace communication technology to protect a person’s
reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of
protected freedoms.62
If such means are adopted, self-inhibition borne of fear of
what sinister predicaments await internet users will suppress
otherwise robust discussion of public issues. Democracy will
be threatened and with it, all liberties. Penal laws should
provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and
discriminatory enforcement.63 The terms "aiding or abetting"
constitute broad sweep that generates chilling effect on those
who express themselves through cyberspace posts, comments,
and other messages.64Hence, Section 5 of the cybercrime law
that punishes "aiding or abetting" libel on the cyberspace is a
nullity.
When a penal statute encroaches upon the freedom of speech,
a facial challenge grounded on the void-for-vagueness
doctrine is acceptable. The inapplicability of the doctrine must
be carefully delineated. As Justice Antonio T. Carpio
explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on
the inapplicability of the overbreadth and vagueness doctrines
to penal statutes as appropriate only insofar as these doctrines
are used to mount ‘facial’ challenges to penal statutes not
involving free speech."
In an "as applied" challenge, the petitioner who claims a
violation of his constitutional right can raise any constitutional
ground – absence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness. Here, one
can challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits one from
assailing the constitutionality of the statute based solely on the
violation of the rights of third persons not before the court.
This rule is also known as the prohibition against third-party
standing.66
But this rule admits of exceptions. A petitioner may for
instance mount a "facial" challenge to the constitutionality of a
statute even if he claims no violation of his own rights under
the assailed statute where it involves free speech on grounds
of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling
effect" on protected speech that comes from statutes violating
free speech. A person who does not know whether his speech
constitutes a crime under an overbroad or vague law may
simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills
him into silence.67
As already stated, the cyberspace is an incomparable,
pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the
medium creates a chilling effect on the constitutionally-
protected freedom of expression of the great masses that use it.
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In this case, the particularly complex web of interaction on
social media websites would give law enforcers such latitude
that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the
visibility of a posting on the internet by liking it? Netizens are
not given "fair notice" or warning as to what is criminal
conduct and what is lawful conduct. When a case is filed, how
will the court ascertain whether or not one netizen’s comment
aided and abetted a cybercrime while another comment did
not?
Of course, if the "Comment" does not merely react to the
original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children,"
then that should be considered an original posting published
on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no
mistake, libel destroys reputations that society values.
Allowed to cascade in the internet, it will destroy relationships
and, under certain circumstances, will generate enmity and
tension between social or economic groups, races, or religions,
exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when
"Google procures, stores, and indexes child pornography and
facilitates the completion of transactions involving the
dissemination of child pornography," does this make Google
and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the
American law on child pornography that the Cybercrimes law
lacks—the exemption of a provider or notably a plain user of
interactive computer service from civil liability for child
pornography as follows:
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided
by another information content provider and cannot be held
civilly liable for any action voluntarily taken in good faith to
restrict access to or availability of material that the provider or
user considers to be obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing child
pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the
distribution of child pornography? When a user downloads the
Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain
information is forwarded to third parties and unsolicited
commercial communication could be disseminated on the
basis of this information.70 As the source of this information,
is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of
annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional.
Its vagueness raises apprehension on the part of internet users
because of its obvious chilling effect on the freedom of
expression, especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a fuzzy way.
What is more, as the petitioners point out, formal crimes such
as libel are not punishable unless consummated.71 In the
absence of legislation tracing the interaction of netizens and
their level of responsibility such as in other countries, Section
5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
Unsolicited Commercial Communications, and Section 4(c)(2)
on Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of
cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on Computer-related Forgery, Section 4(b)(2) on Computer-
related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these
offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these
offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally
access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames
and passwords of others but fail to use these because the
system supervisor is alerted.72 If Section 5 that punishes any
person who willfully attempts to commit this specific offense
is not upheld, the owner of the username and password could
not file a complaint against him for attempted hacking. But
this is not right. The hacker should not be freed from liability
simply because of the vigilance of a lawful owner or his
supervisor.
Petitioners of course claim that Section 5 lacks positive limits
and could cover the innocent.73 While this may be true with
respect to cybercrimes that tend to sneak past the area of free
expression, any attempt to commit the other acts specified in
Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section
4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1),
Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as
the actors aiding and abetting the commission of such acts can
be identified with some reasonable certainty through adroit
tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal
Code, as amended, and special laws, if committed by, through
and with the use of information and communications
technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal
Code, as amended, and special laws, as the case may be.
74
Section 6 merely makes commission of existing crimes
through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial
distinction between crimes committed through the use of
information and communications technology and similar
crimes committed using other means. In using the technology
in question, the offender often evades identification and is able
to reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under
this Act shall be without prejudice to any liability for violation
of any provision of the Revised Penal Code, as amended, or
special laws.
The Solicitor General points out that Section 7 merely
expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a
special law and the Revised Penal Code. When two different
laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the
same fact, if each crime involves some important act which is
not an essential element of the other.74 With the exception of
the crimes of online libel and online child pornography, the
Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if
the published material on print, said to be libelous, is again
posted online or vice versa, that identical material cannot be
the subject of two separate libels. The two offenses, one a
violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve
essentially the same elements and are in fact one and the same
offense. Indeed, the OSG itself claims that online libel under
Section 4(c)(4) is not a new crime but is one already punished
under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging
the offender under both laws would be a blatant violation of
the proscription against double jeopardy.76
The same is true with child pornography committed online.
Section 4(c)(2) merely expands the ACPA’s scope so as to
include identical activities in cyberspace. As previously
discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise
be tantamount to a violation of the constitutional prohibition
against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the
punishable acts enumerated in Sections 4(a) and 4(b) of this
Act shall be punished with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos (PhP200,000.00)
up to a maximum amount commensurate to the damage
incurred or both.
Any person found guilty of the punishable act under Section
4(a)(5) shall be punished with imprisonment of prision mayor
or a fine of not more than Five hundred thousand pesos
(PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against
critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (PhP500,000.00)
up to maximum amount commensurate to the damage incurred
or both, shall be imposed.
Any person found guilty of any of the punishable acts
enumerated in Section 4(c)(1) of this Act shall be punished
with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (PhP200,000.00) but not exceeding
One million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts
enumerated in Section 4(c)(2) of this Act shall be punished
with the penalties as enumerated in Republic Act No. 9775 or
the "Anti-Child Pornography Act of 2009:" Provided, That the
penalty to be imposed shall be one (1) degree higher than that
provided for in Republic Act No. 9775, if committed through
a computer system.
Any person found guilty of any of the punishable acts
enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty
thousand pesos (PhP50,000.00) but not exceeding Two
hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts
enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the
offense or a fine of at least One hundred thousand pesos
(PhP100,000.00) but not exceeding Five hundred thousand
pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes:
Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b)
on Computer-related Offenses; 4(a)(5) on Misuse of Devices;
when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child
Pornography; 4(c)(3) on Unsolicited Commercial
Communications; and Section 5 on Aiding or Abetting, and
Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is
as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as
deleterious cybercrimes. They appear proportionate to the evil
75
sought to be punished. The power to determine penalties for
offenses is not diluted or improperly wielded simply because
at some prior time the act or omission was but an element of
another offense or might just have been connected with
another crime.77 Judges and magistrates can only interpret and
apply them and have no authority to modify or revise their
range as determined by the legislative department.
The courts should not encroach on this prerogative of the
lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law
enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data
in real-time associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communication’s origin,
destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will
require a court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the
above-stated information.
The court warrant required under this section shall only be
issued or granted upon written application and the
examination under oath or affirmation of the applicant and the
witnesses he may produce and the showing: (1) that there are
reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed, or is being
committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be
obtained is essential to the conviction of any person for, or to
the solution of, or to the prevention of, any such crimes; and
(3) that there are no other means readily available for
obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the
power to collect or record traffic data in real time as tending to
curtail civil liberties or provide opportunities for official
abuse. They claim that data showing where digital messages
come from, what kind they are, and where they are destined
need not be incriminating to their senders or recipients before
they are to be protected. Petitioners invoke the right of every
individual to privacy and to be protected from government
snooping into the messages or information that they send to
one another.
The first question is whether or not Section 12 has a proper
governmental purpose since a law may require the disclosure
of matters normally considered private but then only upon
showing that such requirement has a rational relation to the
purpose of the law,79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly
drawn.80 In assessing regulations affecting privacy rights,
courts should balance the legitimate concerns of the State
against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting
the cybercrime law for there is a need to put order to the
tremendous activities in cyberspace for public good.82 To do
this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or
recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting,
preventing, and investigating crimes committed in cyberspace.
Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes
requires signatory countries to adopt legislative measures to
empower state authorities to collect or record "traffic data, in
real time, associated with specified communications." 83 And
this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such
data.
But is not evidence of yesterday’s traffic data, like the scene
of the crime after it has been committed, adequate for fighting
cybercrimes and, therefore, real-time data is superfluous for
that purpose? Evidently, it is not. Those who commit the
crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual
organs or sexual activity for favor or consideration;86 and
producing child pornography87 could easily evade detection
and prosecution by simply moving the physical location of
their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere:
from internet cafés, from kindred places that provide free
internet services, and from unregistered mobile internet
connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have
listed addresses and can neither be located nor identified.
There are many ways the cyber criminals can quickly erase
their tracks. Those who peddle child pornography could use
relays of computers to mislead law enforcement authorities
regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent
recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.
Petitioners of course point out that the provisions of Section
12 are too broad and do not provide ample safeguards against
crossing legal boundaries and invading the people’s right to
privacy. The concern is understandable. Indeed, the Court
recognizes in Morfe v. Mutuc88 that certain constitutional
guarantees work together to create zones of privacy wherein
governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be
76
left alone has been regarded as the beginning of all
freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the
United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy.
Decisional privacy involves the right to independence in
making certain important decisions, while informational
privacy refers to the interest in avoiding disclosure of personal
matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or
recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have
private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether
or not a matter is entitled to the right to privacy, this Court has
laid down a two-fold test. The first is a subjective test, where
one claiming the right must have an actual or legitimate
expectation of privacy over a certain matter. The second is an
objective test, where his or her expectation of privacy must be
one society is prepared to accept as objectively reasonable. 92
Since the validity of the cybercrime law is being challenged,
not in relation to its application to a particular person or group,
petitioners’ challenge to Section 12 applies to all information
and communications technology (ICT) users, meaning the
large segment of the population who use all sorts of electronic
devices to communicate with one another. Consequently, the
expectation of privacy is to be measured from the general
public’s point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who
courses his communication through a service provider, must of
necessity disclose to the latter, a third person, the traffic data
needed for connecting him to the recipient ICT user. For
example, an ICT user who writes a text message intended for
another ICT user must furnish his service provider with his
cellphone number and the cellphone number of his recipient,
accompanying the message sent. It is this information that
creates the traffic data. Transmitting communications is akin
to putting a letter in an envelope properly addressed, sealing it
closed, and sending it through the postal service. Those who
post letters have no expectations that no one will read the
information appearing outside the envelope.
Computer data—messages of all kinds—travel across the
internet in packets and in a way that may be likened to parcels
of letters or things that are sent through the posts. When data
is sent from any one source, the content is broken up into
packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that
tells computers where the packet originated, what kind of data
is in the packet (SMS, voice call, video, internet chat
messages, email, online browsing data, etc.), where the packet
is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the
internet at times across the ocean do not disclose the actual
names and addresses (residential or office) of the sender and
the recipient, only their coded internet protocol (IP) addresses.
The packets travel from one computer system to another
where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look
into the contents of the messages and uncover the identities of
the sender and the recipient.
For example, when one calls to speak to another through his
cellphone, the service provider’s communication’s system will
put his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard.
The latter’s spoken reply is sent to the caller in the same way.
To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call
through. He also reveals the cellphone number to the person
he calls. The other ways of communicating electronically
follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the
United States Supreme Court reasoned that telephone users in
the ‘70s must realize that they necessarily convey phone
numbers to the telephone company in order to complete a call.
That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is
not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot
communicate or exchange data with one another over
cyberspace except through some service providers to whom
they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this
data takes them out of the private sphere, making the
expectation to privacy in regard to them an expectation that
society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion
that when seemingly random bits of traffic data are gathered in
bulk, pooled together, and analyzed, they reveal patterns of
activities which can then be used to create profiles of the
persons under surveillance. With enough traffic data, analysts
may be able to determine a person’s close associations,
religious views, political affiliations, even sexual preferences.
Such information is likely beyond what the public may expect
to be disclosed, and clearly falls within matters protected by
the right to privacy. But has the procedure that Section 12 of
the law provides been drawn narrowly enough to protect
individual rights?
Section 12 empowers law enforcement authorities, "with due
cause," to collect or record by technical or electronic means
traffic data in real-time. Petitioners point out that the phrase
"due cause" has no precedent in law or jurisprudence and that
whether there is due cause or not is left to the discretion of the
police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word
it uses in drafting the law.
77
Indeed, courts are able to save vague provisions of law
through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it
intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot
draw this meaning since Section 12 does not even bother to
relate the collection of data to the probable commission of a
particular crime. It just says, "with due cause," thus justifying
a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data
collection will be used. Will the law enforcement agencies use
the traffic data to identify the perpetrator of a cyber attack? Or
will it be used to build up a case against an identified suspect?
Can the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies
is too sweeping and lacks restraint. While it says that traffic
data collection should not disclose identities or content data,
such restraint is but an illusion. Admittedly, nothing can
prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to extortion from
certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to
those "associated with specified communications." But this
supposed limitation is no limitation at all since, evidently, it is
the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling
law enforcement authorities to engage in "fishing expedition,"
choosing whatever specified communication they want. This
evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to
authorize collection of traffic data "in real time" because it is
not possible to get a court warrant that would authorize the
search of what is akin to a "moving vehicle." But warrantless
search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is
no opportunity for getting a warrant, and that unless the search
is immediately carried out, the thing to be searched stands to
be removed. These preconditions are not provided in Section
12.
The Solicitor General is honest enough to admit that Section
12 provides minimal protection to internet users and that the
procedure envisioned by the law could be better served by
providing for more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to
track cyberspace communications in real time and determine
their sources and destinations must be narrowly drawn to
preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for
being violative of the void-for-vagueness doctrine and the
overbreadth doctrine. These doctrines however, have been
consistently held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates nor punishes
any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the
government and kindred institutions to monitor individuals
and place them under surveillance in ways that have
previously been impractical or even impossible. "All the
forces of a technological age x x x operate to narrow the area
of privacy and facilitate intrusions into it. In modern terms, the
capacity to maintain and support this enclave of private life
marks the difference between a democratic and a totalitarian
society."96 The Court must ensure that laws seeking to take
advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the
Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of
traffic data and subscriber information relating to
communication services provided by a service provider shall
be preserved for a minimum period of six (6) months from the
date of the transaction. Content data shall be similarly
preserved for six (6) months from the date of receipt of the
order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension
for another six (6) months: Provided, That once computer data
preserved, transmitted or stored by a service provider is used
as evidence in a case, the mere furnishing to such service
provider of the transmittal document to the Office of the
Prosecutor shall be deemed a notification to preserve the
computer data until the termination of the case.
The service provider ordered to preserve computer data shall
keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes
an undue deprivation of the right to property. They liken the
data preservation order that law enforcement authorities are to
issue as a form of garnishment of personal property in civil
forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong
to them.
No doubt, the contents of materials sent or received through
the internet belong to their authors or recipients and are to be
considered private communications. But it is not clear that a
service provider has an obligation to indefinitely keep a copy
of the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information
78
relating to communication services for at least six months
from the date of the transaction and those relating to content
data for at least six months from receipt of the order for their
preservation.
Actually, the user ought to have kept a copy of that data when
it crossed his computer if he was so minded. The service
provider has never assumed responsibility for their loss or
deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the
data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by
reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal
transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement
authorities, upon securing a court warrant, shall issue an order
requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from
receipt of the order in relation to a valid complaint officially
docketed and assigned for investigation and the disclosure is
necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the
issuance of a subpoena. Petitioners’ objection is that the
issuance of subpoenas is a judicial function. But it is well-
settled that the power to issue subpoenas is not exclusively a
judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers. 98
Besides, what Section 14 envisions is merely the enforcement
of a duly issued court warrant, a function usually lodged in the
hands of law enforcers to enable them to carry out their
executive functions. The prescribed procedure for disclosure
would not constitute an unlawful search or seizure nor would
it violate the privacy of communications and correspondence.
Disclosure can be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data.
— Where a search and seizure warrant is properly issued, the
law enforcement authorities shall likewise have the following
powers and duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
(a) To secure a computer system or a computer data
storage medium;
(b) To make and retain a copy of those computer data
secured;
(c) To maintain the integrity of the relevant stored
computer data;
(d) To conduct forensic analysis or examination of
the computer data storage medium; and
(e) To render inaccessible or remove those computer
data in the accessed computer or computer and
communications network.
Pursuant thereof, the law enforcement authorities may order
any person who has knowledge about the functioning of the
computer system and the measures to protect and preserve the
computer data therein to provide, as is reasonable, the
necessary information, to enable the undertaking of the search,
seizure and examination.
Law enforcement authorities may request for an extension of
time to complete the examination of the computer data storage
medium and to make a return thereon but in no case for a
period longer than thirty (30) days from date of approval by
the court.
Petitioners challenge Section 15 on the assumption that it will
supplant established search and seizure procedures. On its
face, however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper
collection, preservation, and use of computer system or data
that have been seized by virtue of a court warrant. The
exercise of these duties do not pose any threat on the rights of
the person from whom they were taken. Section 15 does not
appear to supersede existing search and seizure rules but
merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of
the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be,
shall immediately and completely destroy the computer data
subject of a preservation and examination.
Section 17 would have the computer data, previous subject of
preservation or examination, destroyed or deleted upon the
lapse of the prescribed period. The Solicitor General justifies
this as necessary to clear up the service provider’s storage
systems and prevent overload. It would also ensure that
investigations are quickly concluded.
79
Petitioners claim that such destruction of computer data
subject of previous preservation or examination violates the
user’s right against deprivation of property without due
process of law. But, as already stated, it is unclear that the user
has a demandable right to require the service provider to have
that copy of the data saved indefinitely for him in its storage
system. If he wanted them preserved, he should have saved
them in his computer when he generated the data or received
it. He could also request the service provider for a copy before
it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or
block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.—
When a computer data is prima facie found to be in violation
of the provisions of this Act, the DOJ shall issue an order to
restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of
expression and violates the right against unreasonable searches
and seizures. The Solicitor General concedes that this
provision may be unconstitutional. But since laws enjoy a
presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right
mentioned.
Computer data99 may refer to entire programs or lines of code,
including malware, as well as files that contain texts, images,
audio, or video recordings. Without having to go into a
lengthy discussion of property rights in the digital space, it is
indisputable that computer data, produced or created by their
writers or authors may constitute personal property.
Consequently, they are protected from unreasonable searches
and seizures, whether while stored in their personal computers
or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the
right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable. Further, it states that no
search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in
effect, seizes and places the computer data under its control
and disposition without a warrant. The Department of Justice
order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In
such a case, Section 19 operates as a restriction on the
freedom of expression over cyberspace. Certainly not all
forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to
be unprotected without any judicial warrant, it is not enough
for him to be of the opinion that such content violates some
law, for to do so would make him judge, jury, and executioner
all rolled into one.100
Not only does Section 19 preclude any judicial intervention,
but it also disregards jurisprudential guidelines established to
determine the validity of restrictions on speech. Restraints on
free speech are generally evaluated on one of or a combination
of three tests: the dangerous tendency doctrine, the balancing
of interest test, and the clear and present danger
rule.101 Section 19, however, merely requires that the data to
be blocked be found prima facie in violation of any provision
of the cybercrime law. Taking Section 6 into consideration,
this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three
tests mentioned above.
The Court is therefore compelled to strike down Section 19 for
being violative of the constitutional guarantees to freedom of
expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the
provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of
Presidential Decree No. 1829 with imprisonment of prision
correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every
noncompliance with an order issued by law enforcement
authorities.
Petitioners challenge Section 20, alleging that it is a bill of
attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to
situations where non-compliance would be reasonable or
valid.
But since the non-compliance would be punished as a
violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are
defined therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had to
make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum
period, or a fine ranging from 1,000 to 6,000 pesos, or both,
shall be imposed upon any person who knowingly or willfully
obstructs, impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must
still be done "knowingly or willfully." There must still be a
judicial determination of guilt, during which, as the Solicitor
General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as
80
it applies to the provisions of Chapter IV which are not struck
down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.–
There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as
the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned
agencies and for the formulation and enforcement of the
national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the
following powers and functions:
(a) To formulate a national cybersecurity plan and extend
immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team
(CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated
its power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national
cybersecurity plan without any sufficient standards or
parameters for it to follow.
In order to determine whether there is undue delegation of
legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the
first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it
reaches the delegate, the only thing he will have to do is to
enforce it.1avvphi1 The second test mandates adequate
guidelines or limitations in the law to determine the
boundaries of the delegate’s authority and prevent the
delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed
the CICC to formulate and implement a national cybersecurity
plan. Also, contrary to the position of the petitioners, the law
gave sufficient standards for the CICC to follow when it
provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk
management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber
environment and organization and user’s assets.104 This
definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent
with the policy of the law to "prevent and combat such [cyber]
offenses by facilitating their detection, investigation, and
prosecution at both the domestic and international levels, and
by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest
of law and order, which has been considered as sufficient
standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175
that penalizes posting of unsolicited
commercial communications;
b. Section 12 that authorizes the collection
or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes
the Department of Justice to restrict or block
access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a
computer system without right;
b. Section 4(a)(3) that penalizes data
interference, including transmission of
viruses;
c. Section 4(a)(6) that penalizes cyber-
squatting or acquiring domain name over the
internet in bad faith to the prejudice of
others;
d. Section 4(b)(3) that penalizes identity
theft or the use or misuse of identifying
information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or
the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the
production of child pornography;
g. Section 6 that imposes penalties one
degree higher when crimes defined under
the Revised Penal Code are committed with
the use of information and communications
technologies;
h. Section 8 that prescribes the penalties for
cybercrimes;
i. Section 13 that permits law enforcement
authorities to require service providers to
preserve traffic data and subscriber
81
 information as well as specified content data
for six months;
j. Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k. Section 15 that authorizes the search,
seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction
of previously preserved computer data after
the expiration of the prescribed holding
periods;
m. Section 20 that penalizes obstruction of
justice in relation to cybercrime
investigations;
n. Section 24 that establishes a Cybercrime
Investigation and Coordinating Center
(CICC);
o. Section 26(a) that defines the CICC’s
Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the
Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as
VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and
attempt in the commission of cybercrimes as VA L I
D and CONSTITUTIONAL only in relation to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud,
Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE
DETERMINATION of the correct application of Section 7
that authorizes prosecution of the offender under both the
Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender
under both Section 4(c)(4) of Republic Act 10175
and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against
double jeopardy; as well as
2. Child pornography committed online as to which,
charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the
Anti-Child Pornography Act of 2009 also constitutes
a violation of the same proscription, and, in respect to
these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
Footnotes
*No part.
1
The US Supreme Court first suggested the standard
by implication in footnote 4 of United States v.
Carolene Products (304 U.S. 144, 152 n.4 (1938). See
Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts.
Winkler, A. UCLA School of Law, Public Law &
Legal Theory Research Paper Series, Research Paper
No. 06-14, http://ssrn.com/abstract=897360 (last
accessed April 10, 2013).
2
Serrano v. Gallant Maritime Services, Inc., G.R.
No. 167614, March 24, 2009, 582 SCRA 254, 278.
3
White Light Corporation v. City of Manila, G.R.
No. 122846, January 20, 2009, 576 SCRA 416, 437.
4
All 50 states of the United States have passed
individual state laws criminalizing hacking or
unauthorized access, http://www.ncsl.org/issues-
research/telecom/computer-hacking-and-
unauthorized-access-laws.aspx (last accessed May
16, 2013). The United States Congress has also
passed the Computer Fraud and Abuse Act 18 U.S.C.
§ 1030 that penalizes, among others, hacking. The
Budapest Convention on Cybercrime considers
hacking as an offense against the confidentiality,
integrity and availability of computer data and
systems and 29 countries have already ratified or
acceded,
http://conventions.coe.int/Treaty/Commun/ChercheSi
g.asp?NT=185&CM=&DF=&CL=ENG (last
accessed May 16, 2013).
5
Ethical Hacking. Palmer, C. IBM Systems Journal,
Vol. 40, No. 3, 2001, p. 770,
http://pdf.textfiles.com/security/palmer.pdf (last
accessed April 10, 2013).
6
Id. at 774.
82
7 23
Southern Hemisphere Engagement Network, Inc. v. Bicameral Conference Committee, pp. 5-6.
Anti-Terrorism Council, G.R. Nos. 178552, 178554,
178581, 178890, 179157 & 179461, October 5, 2010, 24
Id.
632 SCRA 146, 185.
25
Office of the Solicitor General, COMMENT, p. 71.
8
The intentional destruction of property is popularly
referred to as vandalism. It includes behavior such as 26
REPUBLIC ACT 9208, Section 4(e).
breaking windows, slashing tires, spray painting a
wall with graffiti, and destroying a computer system 27
through the use of a computer virus, http://legal- Id., Section 3(c).
dictionary.thefreedictionary.com/Vandalism (last
28
accessed August 12, 2013). G.R. No. 191080, November 21, 2011, 660 SCRA
475.
9
Southern Hemisphere Engagement Network, Inc. v.
29
Anti-Terrorism Council, supra note 7, at 186; Estrada REVISED PENAL CODE, Article 201 (2)(b)(2),
v. Sandiganbayan, 421 Phil. 290, 354 (2001). as amended by Presidential Decree 969.

30
10
Id. Pita v. Court of Appeals, 258-A Phil. 134 (1989).

11
Id., citing the Opinion of Justice Vicente V.
Mendoza in Estrada v. Sandiganbayan.
12
1987 CONSTITUTION, Article III, Section 1.
31
REPUBLIC ACT 9775 entitled AN ACT
DEFINING THE CRIME OF CHILD
PORNOGRAPHY, PRESCRIBING PENALTIES
THEREFOR AND FOR OTHER PURPOSES.

32
13
Pollo v. Constantino-David, G.R. No. 181881, Sto. Tomas v. Salac, G.R. No. 152642, November
October 18, 2011, 659 SCRA 189, 204-205. 13, 2012, 685 SCRA 245, citing People v. Ventura,
114 Phil. 162, 167 (1962).
14
130 Phil. 415 (1968) 33
Supra note 31, Section 4(b).
15
535 Phil. 687, 714-715 (2006). 34
G.R. No. 203407 (Bagong Alyansang Makabayan),
16 MEMORANDUM, pp. 34-37.
Supra note 12, Article II, Section 2.
35
17 White Buffalo Ventures, LLC v. Univ. of Tex. at
Supra note 12, Article III, Section 3. Austin, 2004 U.S. Dist. LEXIS 19152 (W.D. Tex.
Mar. 22, 2004).
18
In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon, supra 36
Concurring Opinion of Chief Justice Reynato S.
note 15. Puno in Pharmaceutical and Health Care Association
of the Philippines v. Duque III, 561 Phil. 387, 449
19
Section 3(g) of Republic Act 10173 or the Data (2007).
Privacy Act of 2012 defines personal information as
"any information whether recorded in a material form 37
Supra note 29, Article 362.
or not, from which the identity of an individual is
apparent or can be reasonably and directly 38
ascertained by the entity holding the information, or Borjal v. Court of Appeals, 361 Phil. 1 (1999);
when put together with other information would Vasquez v. Court of Appeals, 373 Phil. 238 (1999).
directly and certainly identify an individual."
39
573 Phil. 278 (2008).
20
People v. Uy, G.R. No. 174660, May 30, 2011, 649
40
SCRA 236. Vasquez v. Court of Appeals, supra note 38.

41
21
Supra note 17 (G.R. No. 203359 [Guingona]; G.R. L. BOADO, COMPACT REVIEWER IN
No. 203518 [PIFA]). CRIMINAL LAW 403-404 (2d ed. 2007).

42
22
Merriam-Webster, http://www.merriam- Vasquez v. Court of Appeals, supra note 38, citing
webster.com/dictionary/favor (last accessed May 30, New York Times v. Sullivan, 376 U.S. 254, 11
2013). L.Ed.2d 686 (1964).

83
43 66
Annette F. v. Sharon S., 119 Cal. App. 4th 1146, Id.
1151 (Cal. App. 4th Dist. 2004).
67
Id.
44
Borjal v. Court of Appeals, supra note 38, citing
United States v. Bustos, 37 Phil. 731 (1918). 68
A contention found in Bruce Byars, Timothy
O’Keefe, and Thomas Clement "Google, Inc.:
45
Supra note 41, at 403. Procurer, Possessor, Distributor, Aider and Abettor in
Child Pornography,"
46
Supra note 29, Article 354.
http://forumonpublicpolicy.com/archivespri
47
Communication 1815/2008. ng08/byars.pdf (last accessed May 25,
2013).
48
General Comment 34, ICCPR, par. 47.
69
Id., citing 47 U.S.C. 230.
49
ICCPR, Article 19(2) and (3).
70
Bianca Bosker, Facebook To Share Users' Home
Addresses, Phone Numbers With External Sites,
50
Sandals Resorts Int’l. Ltd. v. Google, Inc., 86
http://www.huffingtonpost.com/2011/02/28/facebook
A.D.3d 32 (N.Y. App. Div. 1st Dep’t 2011).
-home-addresses-phone-numbers_n_829459.html
51
(last accessed July 18, 2013).
Office of the Solicitor General, MEMORANDUM,
pp. 69-70. 71
G.R. No. 203440 (Sta Maria), MEMORANDUM,
52
p. 14, citing Luis B. Reyes, The Revised Penal Code:
REPUBLIC ACT 3701, Section 1. Book 1, 118 (17th ed. 2008).
53
REPUBLIC ACT 4712, Section 5. 72
Shiresee Bell, Man Pleads Guilty to Attempted
USC Website Hacking, Email Accounts,
54
LABOR CODE, Article 264. http://columbia-sc.patch.com/groups/police-and-
fire/p/man-pleaded-guilty-to-hacking-usc-website-
55 email-accounts (last accessed July 18, 2013); Peter
G.R. No. 203440 (Sta. Maria), PETITION, p. 2.
Ryan, Hackers target Bureau of Statistics data,
56
http://www.statisticbrain.com/social-networking- http://www.abc.net.au/news/2013-04-26/abs-
statistics/ (last accessed January 14, 2013). targeted-by-hackers/4652758 (last accessed July 18,
2013).
57
http://en.wikipedia.org/wiki/Social_networking_ser 73
vice (last accessed January 14, 2013). Supra note 34, at 32.

74
58
http://www.statisticbrain.com/social-networking- Supra note 51, at 49, citing People v. Doriquez,
statistics/ (last accessed January 14, 2013). 133 Phil. 295 (1968).

75
59
http://en.wikipedia.org/wiki/Facebook (last Office of the Solicitor General, MEMORANDUM,
accessed January 14, 2013). p. 49.

76
60
G. R . No. 203378 (Adonis) and G.R. No. 203391 Section 21, Article III, 1987 CONSTITUTION:
(Palatino), CONSOLIDATED MEMORANDUM, p. "No person shall be twice put in jeopardy of
34. punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or
61 acquittal under either shall constitute a bar to another
521 U.S. 844 (1997).
prosecution for the same act."
62
Griswold v. Connecticut, 381 U.S. 479 (1965). 77
Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).
63
G.R. No. 203378 (Adonis), First AMENDED 78
People v. Dela Cruz, G.R. No. 100386, December
PETITION, pp. 35-36.
11, 1992, 216 SCRA 476, citing People v. Millora,
252 Phil. 105 (1989).
64
Supra note 55, at 33.
79
Supra note 14, at 436-437.
65
576 Phil. 357 (2008).
84
80 94
Ople v. Torres, 354 Phil. 948, 974-975 (1998). 442 U.S. 735 (1979).

81
In the Matter of the Petition for Habeas Corpus of
Capt. Alejano v. Gen. Cabuay, 505 Phil. 298, 322
(2005); Gamboa v. Chan, G.R. No. 193636, July 24,
2012, 677 SCRA 385.
82
SEC. 2. Declaration of Policy. — The State
recognizes the vital role of information and
communications industries such as content
production, telecommunications, broadcasting
electronic commerce, and data processing, in the
nation’s overall social and economic development.
The State also recognizes the importance of
providing an environment conducive to the
development, acceleration, and rational application
and exploitation of information and communications
technology (ICT) to attain free, easy, and intelligible
access to exchange and/or delivery of information;
and the need to protect and safeguard the integrity of
computer, computer and communications systems,
networks, and databases, and the confidentiality,
integrity, and availability of information and data
stored therein, from all forms of misuse, abuse, and
illegal access by making punishable under the law
such conduct or conducts. In this light, the State shall
adopt sufficient powers to effectively prevent and
combat such offenses by facilitating their detection,
investigation, and prosecution at both the domestic
and international levels, and by providing
arrangements for fast and reliable international
cooperation.
83
Convention on Cybercrime, Art. 20, opened for
signature November 23, 2001, ETS 185.
84
Cybercrime Law, Section 4(a)(1),.
85
Id., Section 4(a)(3)
86
Id., Section 4(c)(1)
95
Supra note 80, at 983.
96
Supra note 14, at 437, citing Emerson, Nine
Justices in Search of a Doctrine, 64 Mich. Law Rev.
219, 229 (1965).
97
G.R. No. 203391 (Palatino v. Ochoa).
98
Biraogo v. Philippine Truth Commission, G.R.
Nos. 192935 and 193036, December 7, 2010, 637
SCRA 78, 143; ADMINISTRATIVE CODE of 1987,
Book I, Chapter 9, Section 37, and Book VII, Chapter
1, Section 13.
99
Computer data is defined by R.A. 10175 as
follows:
"SEC. 3. Definition of Terms. x x x
xxxx
(e) Computer data refers to any
representation of facts, information, or
concepts in a form suitable for processing in
a computer system including a program
suitable to cause a computer system to
perform a function and includes electronic
documents and/or electronic data messages
whether stored in local computer systems or
online."
100
Pita v. Court of Appeals, supra note 30, at 151.
101
Chavez v. Gonzales, 569 Phil. 155 (2008).
102
Entitled PENALIZING OBSTRUCTION OF
APPREHENSION AND PROSECUTION OF
CRIMINAL OFFENDERS.

87 103
Id., Section 4(c)(2) Gerochi v. Department of Energy, 554 Phil. 563
(2007).
88
Supra note 14.
104
REPUBLIC ACT 10175, Section 3(k).
89
Id. at 433-437.
105
Supra note 94.
90
429 U.S. 589 (1977).
106
Gerochi v. Department of Energy, supra note 103,
91
Id. at 599. at 586, citing Rubi v. Provincial Board of Mindoro,
39 Phil. 660 (1919).
92
Supra note 13, at 206.

93
Jonathan Strickland, How IP Convergence Works,
http://computer.howstuffworks.com/ip-
convergence2.htm (last accessed May 10, 2013).

85
 Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 203335 April 22, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI,
LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY
OF THE DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE and
THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and
PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG
MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
BERTENI "TOTO" CAUSING, HERNANI Q. CUARE,
PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO,
ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President
Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OFTHE DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.
GISELA ORDENES-CASCOLAN, H. HARRY L.
ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT
OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE
NATIONAL BUREAU OF INVESTIGATION, THE
PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE
AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO
TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS
OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary
of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY
GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned
Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E.
PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE,
JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General
Gabriela Women’s Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the
Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented
by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS
86
NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A.
BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of
the Interior and Local Government,Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M.
CANDELARIA, AMPARITA STA. MARIA, RAY
PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and
RYAN JEREMIAH D. QUAN (all of the Ateneo Human
Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as
Executive Secretary, HONORABLE LEILA DE LIMA in
her capacity as Secretary of Justice, HONORABLE
MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The
CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the
Executive Department of Government),Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), PHILIPPINE PRESS
INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA
PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH
ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION
http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF THE INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF
BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE,
THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER,
AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER
THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF
REPUBLIC ACT NO. 10175,Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D.
ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE, THE HON.
SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V.
ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS;
MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS
SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR;
and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON.
JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES,
represented by FELICIANO R. BELMONTE, JR., in his
capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her
capacity as Secretary of Justice; HON. LOUIS
NAPOLEON C. CASAMBRE, in his capacity as Executive
Director, Information and Communications Technology
Office; HON. NONNATUS CAESAR R. ROJAS, in his
capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his
capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his
official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and
Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director of
the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official
87
capacity as Chief of the Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA,
JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO
SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE
PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE,
composed of DAKILA- PHILIPPINE COLLECTIVE
FOR MODERN HEROISM, represented by Leni Velasco,
PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON
ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN
G.M. RAGRAGIO, MARIA FATIMA A. VILLENA,
MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA
SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI
L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF
SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY
OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF,
PHILIPPINE NATIONAL POLICE, THE HEAD OF
THE DO OFFICE OF CYBERCRIME, and THE OTHER
MEMBERS OF THE CYBERCRIME INVESTIGATION
AND COORDINATING CENTER, Respondents.
RESOLUTION
ABAD, J.:
A number of petitioners seek reconsideration of the Court's
February 18, 2014 Decision that declared invalid and
unconstitutional certain provisions of Republic Act 10125 or
the Cybercrime Prevention Act of 2012 and upheld the
validity of the others. The respondents, represented by the
Office of the Solicitor General, also seek reconsideration of
portions of that decision. After going over their motions,
however, the Court sees no substantial arguments from either
side to warrant the reversal of its February 18, 2014 Decision.
The point about the legislative bicameral committee's
insertions of certain provisions that were neither in the House
bill nor in the Senate bill is something that the Court is not
inclined to investigate since insertions are within the power of
those committees to make so long as the passage of the law
complies with the constitutional requirements.1 The
Cybercrime Prevention Act went through both houses and
they approved it. Any issue concerning alleged non-
compliance with the governing rules of both houses regarding
committee insertions have to be internally resolved by each
house.
In any event, the Court will briefly address certain aspects of
the decision that drew the most objections.
Section 6 of the cybercrime law imposes penalties that are one
degree higher when the crimes defined in the Revised Penal
Code and certain special laws are committed with the use of
information and communication technologies (ICT). Some of
the petitioners insist that Section 6 is invalid since it produces
an unusual chilling effect on users of cyberspace that would
hinder free expression.
Petitioner Bloggers and Netizens for Democracy insist that
Section 6 cannot stand in the absence of a definition of the
term "information and communication technology".2 But
petitioner seems to forget the basic tenet that statutes should
not be read in isolation from one another. The parameters of
that ICT exist in many other laws. Indeed those parameters
have been used as basis for establishing government systems
and classifying evidence.3These along with common usage
provide the needed boundary within which the law may be
applied.
The Court had ample opportunity to consider the proposition
that Section 6 violates the equal protection clause via the
parties’ pleadings, oral arguments, and memoranda. But, as
the Decision stressed, the power to fix the penalties for
violations of penal laws, like the cybercrime law, exclusively
belongs to Congress.
88
In any event, Section 6 of the cybercrime law merely makes
the commission of existing crimes through the internet a
qualifying circumstance that raises by one degree the penalties
corresponding to such crimes. This is not at all arbitrary since
a substantial distinction exists between crimes committed
through the use of ICT and similar crimes committed using
conventional means.
The United Nations Special Rapporteur,4 Frank La Rue,
acknowledged the material distinction. He pointed out that
"[t]he vast potential and benefits of the Internet are rooted in
its unique characteristics, such as its speed, worldwide reach
and relative anonymity." For this reason, while many
governments advocate freedom online, they recognize the
necessity to regulate certain aspects of the use of this media to
protect the most vulnerable.5
Not infrequently, certain users of the technology have found
means to evade being identified and for this reason have been
emboldened to reach far more victims or cause greater harm or
both. It is, therefore, logical for Congress to consider as
aggravating the deliberate use of available ICT by those who
ply their wicked trades.
Compared to traditional crimes, cybercrimes are more
perverse. In traditional estafa for example, the offender could
reach his victim only at a particular place and a particular
time. It is rare that he could consummate his crime without
exposing himself to detection and prosecution. Fraud online,
however, crosses national boundaries, generally depriving its
victim of the means to obtain reparation of the wrong done
and seek prosecution and punishment of the absent criminal.
Cybercriminals enjoy the advantage of anonymity, like
wearing a mask during a heist.
Petitioners share the Chief Justice’s concern for the overall
impact of those penalties, being one degree higher than those
imposed on ordinary crimes, including the fact that the
prescriptive periods for the equivalent cybercrimes have
become longer.6
Prescription is not a matter of procedure over which the Court
has something to say. Rather, it is substantive law since it
assumes the existence of an authority to punish a wrong,
which authority the Constitution vests in Congress alone.
Thus, there is no question that Congress may provide a variety
of periods for the prescription of offenses as it sees fit. What it
cannot do is pass a law that extends the periods of prescription
to impact crimes committed before its passage. 7
It is pointed out that the legislative discretion to fix the penalty
for crimes is not absolute especially when this discretion is
exercised in violation of the freedom of expression. The
increase in the penalty for online libel creates, according to
this view, greater and unusual chilling effect that violates the
protection afforded to such freedom.
But what the stiffer penalty for online libel truly targets are
those who choose to use this most pervasive of media without
qualms, tearing down the reputation of private individuals who
value their names and community standing. The law does not
remotely and could not have any chilling effect on the right of
the people to disagree, a most protected right, the exercise of
which does not constitute libel.
The majority of the movants believe that the Court’s decision
upholding the constitutionality of Section 4(c)(4), which
penalizes online libel, effectively tramples upon the right to
free expression.1âwphi1 But libel is not a protected speech.
There is no freedom to unjustly destroy the reputation of a
decent woman by publicly claiming that she is a paid
prostitute.
As early as 1912, the Court held that libel is a form of
expression not protected by the Constitution.8 Libel, like
obscenity, belongs to those forms of speeches that have never
attained Constitutional protection and are considered outside
the realm of protected freedom. As explained by the US
Supreme Court in Champlinsky v. New Hampsire:9
Allowing the broadest scope to the language and purpose of
the Fourteenth Amendment, it is well understood that the right
of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or "fighting" words – those which,
by their very utterance, inflict injury or tend to incite an
immediate breach of the peace.
It has been well observed that such utterances are no essential
part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order
and morality. "Resort to epithets or personal abuse is not in
any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a
criminal act would raise no question under that instrument."
(Emphasis supplied)
The constitutional guarantee against prior restraint and
subsequent punishment, the jurisprudential requirement of
"actual malice," and the legal protection afforded by "privilege
communications" all ensure that protected speech remains to
be protected and guarded. As long as the expression or speech
falls within the protected sphere, it is the solemn duty of
courts to ensure that the rights of the people are protected.
At bottom, the deepest concerns of the movants seem to be the
fact that the government seeks to regulate activities in the
internet at all. For them, the Internet is a place where a
everyone should be free to do and say whatever he or she
wants. But that is anarchical. Any good thing can be converted
to evil use if there are no laws to prohibit such use. Indeed,
both the United States and the Philippines have promulgated
laws that regulate the use of and access to the Internet.10
89

The movants argue that Section 4(c)(4) is both vague and
overbroad. But, again, online libel is not a new crime. It is
essentially the old crime of libel found in the 1930 Revised
Penal Code and transposed to operate in the cyberspace.
Consequently, the mass of jurisprudence that secures the
freedom of expression from its reach applies to online libel.
Any apprehended vagueness in its provisions has long been
settled by precedents.
6
Philippine Bar Association, Motion for
Reconsideration, p. 2397; Bloggers and Netizens for
Democracy, Motion for Reconsideration, p. 2362.
7
People of the Philippine Islands v. Parel, G.R. No.
L-18260, January 27, 1923, citing Fiore,
Irretroactividad e Interpretacion de las Leyes, pp.
426-428.

The parties' other arguments in their respective motions for 8

Worcester v. Ocampo, 22 Phil. 41 (1912), cited in
reconsideration are mere reiterations that the Court already Bernas, S.J. The 1987 Constitution of the Republic of
considered and ruled upon when it promulgated its earlier the Philippines: A Commentary, 3rd ed., Rex Book
Decision. Store, Manila, 2003.

WHEREFORE, the Court DENIES with finality the various 9

315 U.S. 568 (1942), cited in Gorospe, R.
motions for reconsideration that both the petitioners and the Constitutional Law: Notes and Readings on the Bill
respondents, represented by the Office of the Solicitor of Rights, Citizenship and Suffrage, Vol. I, Rex Book
General, filed for lack of merit. Store, Manila, 2006, p. 672.

SO ORDERED.

Footnotes

* No part.

1
Tatad v. The Secretary of the Department of
Energy, 346 Phil. 321 (1997), citing Tolentino v.
Secretary of Finance, G.R. Nos. 115455, 115525,
115543, 115544, 115754, 115781, 115852, 115873 &
115931, August 25, 1994, 235 SCRA 630.

2
Motion for Reconsideration, p. 2357.

3
An Act Providing And Use Of Electronic
Commercial And Non-Commercial Transactions,
Penalties For Unlawful Use Thereof, And Other
Purposes, Republic Act 8792, June 14, 2000.

4
Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression.

5
La Rue accepts that "legitimate types of information
… may be restricted [such as] child pornography (to
protect the rights of children), hate speech (to protect
the rights of affected communities), defamation (to
protect the rights and reputation of others against
unwarranted attacks), direct and public incitement to
commit genocide (to protect the rights of others), and
advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or
violence (to protect the rights of others, such as the
right to life)." (Citations omitted) (A/HRC/17/27,
p.8); see Maria Luisa Isabel L. Rosales, Today the
Internet, Tomorrow Cable TV?: Situating the Internet
as a Human Right, 57 ATENEO L.J. 463, 484-85
(2012).

90