FULL TEXTS

[G.R. No. 72670 September 12, 1986]

SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY CONCEPCION

BAUTISTA, JOAQUIN G. BERNAS; S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO I.
CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B.
FERNAN, FRANCISCO GARCHITORENA, * ANDREW GONZALEZ, JOSE C. LAURETA,
SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUÑOZ PALMA. JAIME V. ONGPIN,
FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR.,
RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V. SORIANO, DAVID SYCIP,
ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE
JAYME, **, petitioners,
vs.
SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman, and
Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE BERNARDO
FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS,
BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS,
JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd
LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS
FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE
GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO
MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC
ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO
ACUPIDO and HERMILO GOSUICO, *** , respondents.

Lupino Lazaro and Arturo M. de Castro for petitioners.

Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.

Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.

Ramon M. Bernaldo for respondent H. Gosuico.

Romulo Quimbo for respondent B. Vera Cruz.

Norberto J. Quisumbing for respondent P. Olivas.

Felix Solomon for respondent Col. A. Custodio.

Alfonso S. Cruz for B. Fernandez.

Edgardo B. Gayos for M. Pamaran.

RESOLUTION

TEEHANKEE, C.J.:
Last August 21st, our nation marked with solemnity and for the first time in freedom the third
anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno
"Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September,
1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military
tribunal for common offenses alleged to have been committed long before the declaration of martial
law and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he
repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere
instruments and subject to the control of the President as created by him under the General Orders
issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already
been publicly indicted and adjudged guilty by the President of the charges in a nationwide press
conference held on August 24, 1971 when he declared the evidence against Ninoy "not only strong
but overwhelming ." 1 This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal
Party candidates for the November, 1971 elections (when eight persons were killed and practically all of the opposition candidates headed by
Senator Jovito Salonga and many more were seriously injured), and the suspension of the privilege of the writ of habeas corpus under
Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but the truth has never been known. But
the then President never filed the said charges against Ninoy in the civil courts.

Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo
successful heart surgery. After three years of exile and despite the regime's refusal to give him a
passport, he sought to return home "to strive for a genuine national reconciliation founded on justice."
He was to be cold-bloodedly killed while under escort away by soldiers from his plane that had just
landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by
a bullet fired point blank into the back of his head by a murderous assassin, notwithstanding that the
airport was ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it (was)
technically impossible to get inside (such) a cordon." 2 The military investigators reported within a span of three hours that
the man who shot Aquino (whose identity was then supposed to be unknown and was revealed only days later as Rolando Galman, although
he was the personal friend of accused Col. Arturo Custodio who picked him up from his house on August 17, 1983) was a communist-hired
gunman, and that the military escorts gunned him down in turn. The military later filmed a re-enactment of the killing scripted according to this
version and continuously replayed it on all TV channels as if it were taken live on the spot. The then President instantly accepted the military
version and repeated it in a nationally televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order
to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino, this was not the way to do it."

The national tragedy shocked the conscience of the entire nation and outraged the free world. The
large masses of people who joined in the ten-day period of national mourning and came out in millions
in the largest and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom
and their yearning for the truth, justice and freedom.

The then President was constrained to create a Fact Finding Board 3 to investigate "the treacherous and vicious
assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and national
shame specially because of the early distortions and exaggerations in both foreign and local media 4 so that all right thinking and honest men
desire to ventilate the truth through fare, independent and dispassionate investigation by prestigious and free investigators." After two false
starts, 5 he finally constituted the Board 6 on October 22, 1983 which held 125 hearing days commencing November 3, 1983 (including 3
hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of
transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to mark another
first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman, who was received
congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority report of one and
forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the Sandiganbayan which was
better known as a graft court; and the majority report of the four other members was submitted on the following day to the then President who
coldly received them and could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can live with your
conscience with what you have done."

The fact is that both majority and minority reports were one in rejecting the military version as
propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-
hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no
subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen.
Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino
and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino
down the service stairs, deliberately and in conspiracy with one another, gave a perjured story to us
regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman
himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not a communist
plot The only difference between the two reports is that the majority report found all the twenty-six
private respondents abovenamed in the title of the case headed by then AFP Chief General Fabian
C. Ver involved in the military conspiracy and therefore "indictable for the premeditated killing of
Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;" while the
chairman's minority report would exclude nineteen of them and limit as plotters "the six persons who
were on the service stairs while Senator Aquino was descending" and "General Luther Custodio . . .
because the criminal plot could not have been planned and implemented without his intervention."

The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies
in what will transpire in accordance with the action that the Office of the President may thereafter direct
to be taken. "The four-member majority report (also prophetically) wrote in the epilogue (after warning
the forces who adhere to an alien and intolerable political ideology against unscrupulously using the
report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the
first time confirmed our worst fears of what unchecked evil would be capable of doing." They wrote:

The task of the Board was clear and unequivocal. This task was not only to determine
the facts and circumstances surrounding the death of the late former Senator. Of
greater significance is the awesome responsibility of the Board to uphold
righteousness over evil, justice over injustice, rationality over irrationality, humaneness
over inhumanity. The task was indeed a painful test, the inevitable result of which will
restore our country's honored place among the sovereign nations of the free world
where peace, law and order, freedom, and justice are a way of life.

More than any other event in contemporary Philippine history, the killing of the late
former Senator Aquino has brought into sharper focus, the ills pervading Philippine
society. It was the concretization of the horror that has been haunting this country for
decades, routinely manifested by the breakdown of peace and order, economic
instability, subversion, graft and corruption, and an increasing number of abusive
elements in what are otherwise noble institutions in our country-the military and law
enforcement agencies. We are, however, convinced that, by and large, the great
majority of the officers and men of these institutions have remained decent and
honorable, dedicated to their noble mission in the service of our country and people.

The tragedy opened our eyes and for the first time confirmed our worst fears of what
unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba
Eban observes. "Nobody who has great authority can be trusted not to go beyond its
proper limits." Social apathy, passivity and indifference and neglect have spawned in
secret a dark force that is bent on destroying the values held sacred by freedom-loving
people.

To assert our proper place in the civilized world, it is imperative that public officials
should regard public service as a reflection of human Ideals in which the highest sense
of moral values and integrity are strictly required.

A tragedy like that which happened on August 21, 1983, and the crisis that followed,
would have normally caused the resignation of the Chief of the Armed Forces in a
country where public office is viewed with highest esteem and respect and where the
moral responsibilities of public officials transcend all other considerations.

It is equally the fact that the then President through all his recorded public acts and statements from
the beginning disdained and rejected his own Board's above findings and insisted on the military
version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of
anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief
in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my
government were involved, I would have known somehow ... Even at a fairly low level, I would have
known. I know how they think. I know what they are thinking of." 7 He told CBS in another interview in May, 1984 (as
his Fact Finding Board was holding its hearings) the following:

CBS: But indeed there has been recent evidence that seems to
contradict earlier reports, namely, the recent evidence seems to
indicate that some of the guards may have been responsible (for
shooting Ninoy).

MARCOS: Well, you are of course wrong. What you have been reading
are the newspapers and the newspaper reports have been biased. The
evidence still proves that Galman was the killer. The evidence also
shows that there were intelligence reports connecting the communist
party to the killing. 8

In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence
upon release of the Board's majority report implicating him, he wrote that "(W)e are even more aware,
general, that the circumstances under which the board has chosen to implicate you in its findings are
fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that
on the basis of so-called evidence, you have been so accused by some members of the Board," and
extended "My very best wishes to you and your family for a speedy resolution of your case," 9 even as he
announced that he would return the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an interview on June 4,
1985 with the Gamma Photo Agency, as respondent court was hearing the cases, he was quoted as saying that "as will probably be shown,
those witnesses (against the accused) are perjured witnesses." 10

It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo
Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other
petitioners, composed of three former Justices of this Court, five incumbent and former university
presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens
of the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan
committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross
violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to
due process of law. They asserted that the Tanodbayan did not represent the interest of the people
when he failed to exert genuine and earnest efforts to present vital and important testimonial and
documentary evidence for the prosecution and that the Sandiganbayan Justices were biased,
prejudiced and partial in favor of the accused, and that their acts "clouded with the gravest doubts the
sincerity of government to find out the truth about the Aquino assassination." Petitioners prayed for
the immediate issuance of a temporary restraining order restraining the respondent Sandiganbayan
from rendering a decision on the merits in the pending criminal cases which it had scheduled on
November 20, 1985 and that judgment be rendered declaring a mistrial and nullifying the proceedings
before the Sandiganbayan and ordering a re-trial before an impartial tribunal by an unbiased
prosecutor. 10-a

At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining
order enjoining respondent court from rendering a decision in the two criminal cases before it, the
Court resolved by nine-to-two votes 11 to issue the restraining order prayed for. The Court also granted petitioners a five-day
period to file a reply to respondents' separate comments and respondent Tanodbayan a three-day period to submit a copy of his 84-page
memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex
5 of his comment.
But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in
reverse, 12 resolved to dismiss the petition and to lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan
from rendering its decision.13 The same Court majority denied petitioners' motion for a new 5-day period counted from receipt of respondent
Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the
question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to respondents' separate comments, by an
eight-to-three vote, with Justice Gutierrez joining the dissenters. 14

On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did
not indicate the legal ground for such action and urging that the case be set for a full hearing on the
merits because if the charge of partiality and bias against the respondents and suppression of vital
evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The
People are entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If
the State is deprived of a fair opportunity to prosecute and convict because certain material evidence
is suppressed by the prosecution and the tribunal is not impartial, then the entire proceedings would
be null and void. Petitioners prayed that the Sandiganbayan be restrained from promulgating their
decision as scheduled anew on December 2, 1985.

On December 5, 1985, the Court required the respondents to comment on the motion for
reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled,
respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged,
declaring them innocent and totally absolving them of any civil liability. This marked another unusual
first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was
not on trial) as the assassin of Ninoy contrary to the very information and evidence submitted by the
prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal,
the instant case had become moot and academic. On February 4, 1986, the same Court majority
denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad Santos
maintaining our dissent.

On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration
attached therewith. The thrust of the second motion for reconsideration was the startling and
theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6,
1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered
the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel
headed by Herrera to whitewash the criminal cases against the 26 respondents accused and produce
a verdict of acquittal.

On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and
ordered the respondents to comment thereon. 15

Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that
he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new
Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added
"relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein
respondent never succumbed to any alleged attempts to influence his actuations in the
premises, having instead successfully resisted perceived attempts to exert pressure to drop the case
after preliminary investigation, and actually ordered the filing and prosecution of the two (2) murder
cases below against herein private party respondents." He candidly admitted also in his memorandum:
"There is not much that need be said about the existence of pressure. That there were pressures can
hardly be denied; in fact, it has never been denied." 15-a He submitted that "even as he vehemently denies insinuations
of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . . should this Honorable
Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such development so that any wrong that
had been caused may be righted and so that, at the very least the actuations of herein respondent in the premises may be reviewed and
reexamined, confident as he is that the end will show that he had done nothing in the premises that violated his trust as Tanodbayan
(Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of the trial of
the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course."
Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986
stated that the trial of the criminal cases by them was valid and regular and decided on the basis of
evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan
and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital
evidence which would probably alter the result of the trial, Answering Respondents would not interpose
any objection to the reopening of those cases, if only to allow justice to take its course." Respondent
Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no
note to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the
writing of the note or of any note of any kind intended for any lawyer of the defense or even of the
prosecution; and requested for an investigation by this Court to settle the note passing issue once and
for all.

Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the
second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan
prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his
revelations, as follows:

1. AB INITIO, A. VERDICT OF ACQUITTAL!

Incidents during the preliminary investigation showed ominous signs that the fate of
the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman on
August 21, 1983 was doomed to an ignominous end. Malacanang wanted dismissal-
to the extent that a prepared resolution was sent to the Investigating Panel (composed
of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for signature.
This, of course, was resisted by the panel, and a resolution charging all the
respondents as principals was forwarded to the Tanodbayan on January 10, 1985.

2. MALACAÑANG CONFERENCE PLANNED SCENARIO OF TRIAL

At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former President)
summoned to Malacañang Justice Bernardo Fernandez (the Tanodbayan),
Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and an the members
of the Panel

Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs.
Imelda R. Marcos, who left earlier, came back and left again. The former President
had a copy of the panel's signed resolution (charging all accused as principals),
evidently furnished him in advance, and with prepared notes on the contents thereof.

The former President started by vehemently maintaining that Galman shot Aquino at
the tarmac. Albeit initially the undersigned argued against the theory, to remain silent
was the more discreet posture when the former President became emotional (he was
quite sick then).

During a good part of the conference, the former President talked about Aquino and
the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to
the military he rumbled on such statements as: "It will be bloody . . . Gen. Ramos,
though close to me, is getting ambitious and poor Johnny does not know what to do".
. . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is
becoming ambitious "the boys were frantic when they heard that they will be charged
in court, and wig be detained at city jail."
 From outright dismissal, the sentiment veered towards a more pragmatic approach.
The former President more or less conceded that for political and legal reasons all the
respondents should be charged in court, Politically, as it will become evident that the
government was serious in pursuing the case towards its logical conclusion, and
thereby ease public demonstrations; on the other hand, legally, it was perceived that
after (not IF) they are acquitted, double jeopardy would inure. The former President
ordered then that the resolution be revised by categorizing the participation of each
respondent.

In the matter of custody of the accused pendente lite the Coordinator was ordered to
get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly
Bugarin to put on record that they had no place in their respective institutions. The
existence of PD No. 1950 (giving custody to commanding officers of members of AFP
charged in court) was never mentioned.

It was decided that the presiding justice (First Division) would personally handle the
trial, and assurance was made by him that it would be finished in four to six months,
pointing out that, with the recent effectivity of the New Rules on Criminal Procedure,
the trial could be expedited.

Towards the end of the two-hour meeting and after the script had been tacitly mapped
out, the former President uttered: "Mag moro-moro na lang kayo."

The parting words of the former President were: "Thank you for your cooperation. I
know how to reciprocate."

While still in the palace grounds on the way out, the undersigned manifested his desire
to the Tanodbayan to resign from the panel, or even the office. This, as well as other
moves to this effect, had always been refused. Hoping that with sufficient evidence
sincerely and efficiently presented by the prosecution, all involves in the trial would be
conscience-pricked and realize the futility and injustice of proceeding in accordance
with the script, the undersigned opted to say on.

Herrera further added details on the "implementation of the script," such as the holding of a "make-
believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of
January 23, 1985, while there were no members of the media; the installation of TV monitors directly
beamed to Malacanang; the installation of a "war room" occupied by the military; attempts to direct
and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S.
Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the
bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide
these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the
Presiding Justice's over-kill with the declaration that "the Court finds all accused innocent of the crimes
charged in the two informations, and accordingly, they incur neither criminal nor civil liability," adding
that "in the almost twenty years that the undersigned has been the prosecutor in the sala of the
Presiding Justice this is the only occasion where civil liability is pronounced in a decision of acquittal.
" He "associated himself with the motion for reconsideration and likewise prayed that the proceedings
in the Sandiganbayan and its decision be declared null and void."

New Solicitor General Sedfrey Ordoñez' comment of April 25, 1986 submitted that a declaration of
mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of
evidence and collusion. He submitted that this would require reception of evidence by a Court-
appointed or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr.
Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipino case); and
that if petitioners' claim were substantiated, a reopening of the double murder case is proper to avoid
a miscarriage of justice since the verdict of acquittal would no longer be a valid basis for a double
jeopardy claim.

Respondents-accused opposed the second motion for reconsideration and prayed for its denial.
Respondent Olivas contended that the proper step for the government was to file a direct action to
annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures.

As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues
had become moot and academic because of the rendition of the Sandiganbayan's judgment of
acquittal of all respondents- accused on December 2, 1985, with counsels for respondents Ver and
Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for any
reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon the
plaintiff to establish by clear, competent and convincing evidence the cause of the nullity.

After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5, 1986
to appoint a three-member commission composed of retired Supreme Court Justice Conrado
Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and Eduardo
Caguioa as members, to hear and receive evidence, testimonial and documentary, of the charges of
collusion and pressures and relevant matters, upon prior notice to all parties, and to submit their
findings to this Court for proper disposition. The Commission conducted hearings on 19 days, starting
on June 16, 1986 and ending on July 16, 1986, On the said last day, respondents announced in open
hearing that they decided to forego the taking of the projected deposition of former President Marcos,
as his testimony would be merely corroborative of the testimonies of respondents Justice Pamaran
and Tanodbayan Fernandez. On July 31, 1986, it submitted its extensive 64-page Report 16 wherein it
discussed fully the evidence received by it and made a recapitulation of its findings in capsulized form, as follows:

1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special
Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special
Prosecutor Tamayo, was originally of the view that all of the twenty-six (26)
respondents named in the Agrava Board majority report should all be charged as
principals of the crime of double murder for the death of Senator Benigno Aquino and
Rolando Galman.

2. When Malacanang learned of the impending filing of the said charge before the
Sandiganbayan, the Special Investigating Panel having already prepared a draft
Resolution recommending such course of action, President Marcos summoned Justice
Fernandez, the tree members of the Special Investigating Panel, and justice Pamaran
to a conference in Malacanang in the early evening of January 10, 1985.

3. In said conference, President Marcos initially expressed his disagreement with the
recommendation of the Special Investigating Panel and disputed the findings of the
Agrava Board that it was not Galman who shot Benigno Aquino.

4. Later in the conference, however, President Marcos was convinced of the

advisability of filing the murder charge in court so that, after being acquitted as
planned, the accused may no longer be prosecuted in view of the doctrine of double
jeopardy.

5. Presumably in order to be assured that not all of the accused would be denied bail
during the trial, considering that they would be charged with capital offenses, President
 Marcos directed that the several accused be "categorized" so that some of them would
merely be charged as accomplices and accessories.

6. In addition to said directive, President Marcos ordered that the case be handled
personally by Justice Pamaran who should dispose of it in the earliest possible time.

7. The instructions given in the Malacanang conference were followed to the letter;
and compliance therewith manifested itself in several specific instances in the course
of the proceedings, such as, the changing of the resolution of the special investigating
panel, the filing of the case with the Sandiganbayan and its assignment to Justice
Pamaran, suppression of some vital evidence, harassment of witnesses, recantation
of witneses who gave adverse testimony before the Agrava Board, coaching of
defense counsels, the hasty trial, monitoring of proceedings, and even in the very
decision rendered in the case.

8. That that expression of President Marcos' desire as to how he wanted the Aquino-
Galman case to be handled and disposed of constituted sufficient pressure on those
involved in said task to comply with the same in the subsequent course of the
proceedings.

9. That while Justice Pamaran and Justice Fernandez manifested no revulsion against
complying with the Malacañang directive, justice Herrera played his role with
manifestly ambivalent feelings.

10. Sufficient evidence has been ventilated to show a scripted and pre-determined
manner of handling and disposing of the Aquino-Galman murder case, as stage-
managed from Malacañang and performed by willing dramatis personnae as well as
by recalcitrant ones whipped into line by the omnipresent influence of an authoritarian
ruler.

The Commission submitted the following recommendation.

Considering the existence of adequate credible evidence showing that the prosecution
in the Aquino-Galman case and the Justices who tried and decided the same acted
under the compulsion of some pressure which proved to be beyond their capacity to
resist, and which not only prevented the prosecution to fully ventilate its position and
to offer all the evidences which it could have otherwise presented, but also
predetermined the final outcome of the case, the Commission is of the considered
thinking and belief, subject to the better opinion and judgment of this Honorable Court
that the proceedings in the said case have been vitiated by lack of due process, and
hereby respectfully recommends that the prayer in the petition for a declaration of a
mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled "People vs. Luther
Custodia et al.," be granted.

The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and
required them to submit their objections thereto. It thereafter heard the parties and their objections at
the hearing of August 26, 1986 and the matter was submitted for the Court's resolution.

The Court adopts and approves the Report and its findings and holds on the basis thereof and of the
evidence received and appreciated by the Commission and duly supported by the facts of public record
and knowledge set forth above and hereinafter, that the then President (code named Olympus) had
stage-managed in and from Malacanang Palace "a scripted and pre-determined manner of handling
and disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman
case and the Justices who tried and decided the same acted under the compulsion of some pressure
which proved to be beyond their capacity to resist', and which not only prevented the prosecution to
fully ventilate its position and to offer all the evidences which it could have otherwise presented, but
also pre-determined the final outcome of the case" of total absolution of the twenty-six respondents
accused of all criminal and civil liability.

The Court finds that the Commission's Report (incorporated herein by reference) and findings and
conclusions are duly substantiated by the evidence and facts of public record. Composed of
distinguished members of proven integrity with a combined total of 141 years of experience in the
practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial and
appellate courts), experts at sifting the chaff from the grain, 17 the Commission properly appraised the evidences
presented and denials made by public respondents, thus:

The desire of President Marcos to have the Aquino-Galman case disposed of in a

manner suitable to his purposes was quite understandable and was but to be
expected. The case had stirred unprecedented public outcry and wide international
attention. Not invariably, the finger of suspicion pointed to those then in power who
supposedly had the means and the most compelling motive to eliminate Senator
Aquino. A day or so after the assassination, President Marcos came up with a public
statement aired over television that Senator Aquino was killed not by his military
escorts, but by a communist hired gun. It was, therefore, not a source of wonder that
President Marcos would want the case disposed of in a manner consistent with his
announced theory thereof which, at the same time, would clear his name and his
administration of any suspected guilty participation in the assassination.

The calling of the conference was undoubtedly to accomplish this purpose. . . .

President Marcos made no bones to conceal his purpose for calling them. From the
start, he expressed irritation and displeasure at the recommendation of the
investigating panel to charge all of the twenty-six (26) respondents as principals of the
crime of double murder. He insisted that it was Galman who shot Senator Aquino, and
that the findings of the Agrava Board were not supported by evidence that could stand
in court. He discussed and argued with Justice Herrera on this point. Midway in the
course of the discussion, mention was made that the filing of the charge in court would
at least mollify public demands and possibly prevent further street demonstrations. It
was further pointed out that such a procedure would be a better arrangement because,
if the accused are charged in court and subsequently acquitted, they may claim the
benefit of the doctrine of double jeopardy and thereby avoid another prosecution if
some other witnesses shall appear when President Marcos is no longer in office.

xxx xxx xxx

After an agreement was reached as to filing the case, instead of dismissing it, but with
some of the accused to be charged merely as accomplices or accessories, and the
question of preventive custody of the accused having thereby received satisfactory
solution, President Marcos took up the matter of who would try the case and how long
it would take to be finished.

According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to
personally handle the case. This was denied by Justice Pamaran. No similar denial
was voiced by Justice Fernandez in the entire course of his two-day testimony. Justice
Pamaran explained that such order could not have been given inasmuch as it was not
yet certain then that the Sandiganbayan would try the case and, besides, cases therein
are assigned by raffle to a division and not to a particular Justice thereof.

It was preposterous to expect Justice Pamaran to admit having received such

presidential directive. His denial, however, falls to pieces in the light of the fact that the
case was indeed handled by him after being assigned to the division headed by him.
A supposition of mere coincidence is at once dispelled by the circumstance that he
was the only one from the Sandiganbayan called to the Malacanang conference
wherein the said directive was given. . . .

The giving of such directive to Justice Pamaran may also be inferred from his
admission that he gave President Marcos the possible time frame when asked as to
how long it would take him to finish the case.

The testimony of Justice Herrera that, during the conference, and after an agreement
was reached on filing the case and subsequently acquitting the accused, President
Marcos told them "Okay, mag moro-moro na lamang kayo;" and that on their way out
of the room President Marcos expressed his thanks to the group and uttered "I know
how to reciprocate," did not receive any denial or contradiction either on the part of
justice Fernandez or justice Pamaran. (No other person present in the conference was
presented by the respondents. Despite an earlier manifestation by the respondents of
their intention to present Fiscal Bernabe and Prosecutor Tamayo, such move was
abandoned without any reason having been given therefor.)

The facts set forth above are all supported by the evidence on record. In the mind of
the Commission, the only conclusion that may be drawn therefrom is that pressure
from Malacanang had indeed been made to bear on both the court and the prosecution
in the handling and disposition of the Aquino-Galman case. The intensity of this
pressure is readily deductible from the personality of the one who exerted it, his moral
and official ascendancy over those to whom his instructions were directed, the
motivation behind such instructions, and the nature of the government prevailing at
that time which enabled, the then head of state to exercise authoritarian powers. That
the conference called to script or stage-manage the prosecution and trial of the
Aquino-Galman case was considered as something anomalous that should be kept
away from the public eye is shown by the effort to assure its secrecy.None but those
directly involved were caned to attend. The meeting was held in an inner room of the
Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were with
the President. The conferees were told to take the back door in going to the room
where the meeting was held, presumably to escape notice by the visitors in the
reception hall waiting to see the President. Actually, no public mention alas ever made
of this conference until Justice Herrera made his expose some fifteen (15) months later
when the former president was no longer around.

President Marcos undoubtedly realized the importance of the matter he wanted to take
up with the officials he asked to be summoned. He had to do it personally, and not
merely through trusted assistants. The lack of will or determination on the part of
Justice Fernandez and Justice Pamaran to resist the presidential summons despite
their realization of its unwholesome implications on their handling of the celebrated
murder case may be easily inferred from their unquestioned obedience thereto. No
effort to resist was made, despite the existence of a most valid reason to beg off, on
the lame excuses that they went there out of "curiosity," or "out of respect to the Office
 of the President," or that it would be 'unbecoming to refuse a summons from the
President.' Such frame of mind only reveals their susceptibility to presidential pressure
and lack of capacity to resist the same. The very acts of being summoned to
Malacanang and their ready acquiescence thereto under the circumstances then
obtaining, are in themselves pressure dramatized and exemplified Their abject
deference to President Marcos may likewise be inferred from the admitted fact that, not
having been given seatsduring the two-hour conference (Justice Fernandez said it was
not that long, but did not say how long) in which President Marcos did the talking most
of the time, they listened to him on their feet. Verily, it can be said that any avowal of
independent action or resistance to presidential pressure became illusory from the very
moment they stepped inside Malacanang Palace on January 10, 1985. 18

The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether
the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may
be gauged by their subsequent actuations in their respective handling of the case." It duly concluded
that "the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded
the entire proceedings of the Aquino Galman [murder] cases" as manifested in several specific
incidents and instances it enumerated in the Report under the heading of "Manifestations of Pressure
and Manipulation."

Suffice it to give hereinbelow brief excerpts:—

1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as
principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and
6 others as accessories and the civilian as accomplice, and recommending bail for the latter two
categories: "The categorization may not be completely justified by saying that, in the mind of Justice
Fernandez, there was no sufficient evidence to justify that all of the accused be charged as principals.
The majority of the Agrava Board found the existence of conspiracy and recommended that all of the
accused be charged accordingly. Without going into the merit of such finding, it may hardly be disputed
that, in case of doubt, and in accordance with the standard practice of the prosecution to charge
accused with the most serious possible offense or in the highest category so as to prevent an incurable
injustice in the event that the evidence presented in the trial will show his guilt of the graver charge,
the most logical and practical course of action should have been, as originally recommended by the
Herrera panel, to charge all the accused as principals. As it turned out, Justice Fernandez readily
opted for categorization which, not surprisingly, was in consonance with the Malacañang instruction."
It is too much to attribute to coincidence that such unusual categorization came only after the then
President's instruction at Malacanang when Gen. Ver's counsel, Atty. Coronel, had been asking the
same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself, admit(ted)
that, as of that time, [the Malacanang conference on January 10, 1985], his own view was in conformity
with that of the Special Investigating Panel to charge all of the twenty-six (26) respondents as
principals of the crime of double murder." 19 As the Commission further noted, "Justice Fernandez never denied the claim of
Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject
of a press conference on the afternoon of said date which did not go through due to the summons for them to go to Malacanang in the early
evening of said date."20

2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a party's
case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in
behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the
accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and
some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled,
perjured or threatened either to refrain from testifying or to testify in a manner favorable to the
defense."
The Report specified the ordeals of the prosecution witnesses:21 Cesar Loterina, PAL employee, Roberta
Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution
witnesses before at the trial. Witnesses Viesca and Rañas who also testified before the Board "disappeared all of a sudden and could not be
located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who accompanied Ninoy on his fateful flight
on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed to
return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had to
leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in accordance
with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an official of the
Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of the
discrepancy from the original transcription which was in Nippongo. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice
Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to protect Wakamiya
from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August 24th) notwithstanding
Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal eyewitness Rebecca Quijano,
the Commission reported that

... Undoubtedly in view of the considerable significance of her proposed testimony and
its unfavorable effect on the cause of the defense, the efforts exerted to suppress the
same was as much as, if not more than those in the case of Wakamiya. ... She
recounted that she was in constant fear of her life, having been hunted by armed men;
that their house in Tabaco, Albay was ransacked, her family harassed by the
foreclosure of the mortgage on their house by the local Rural Bank, and ejected
therefrom when she ignored the request of its manager to talk with her about her
proposed testimony; that a certain William Fariñas offered her plane tickets for a trip
abroad; that Mayor Rudy Fariñas of Laoag City kept on calling her sister in the United
States to warn her not to testify; that, later, Rudy and William Fariñas offered her two
million pesos supposedly coming from Bongbong Marcos, a house and lot in Baguio,
the dropping of her estafa case in Hongkong, and the punishment of the persons
responsible for the death of her father, if she would refrain from testifying.

It is a matter of record, however, that despite such cajolery and harassments, or

perhaps because of them, Ms. Quijano eventually testified before the Sandiganbayan.
Justice Herrera was told by justice Fernandez of the displeasure expressed by
Olympus at justice Herrera's going out of his way to make Ms. Quijano to testify, and
for his refusal to honor the invitation to attend the birthday party of the First Lady on
May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The insiduous
attempts to tamper with her testimony, however, did not end with her taking the witness
stand. In the course of her testimony several notes were passed to Atty. Rodolfo
Jimenez, the defense counsel who cross-examined her, one of which suggested that
she be asked more questions about Dean Narvasa who was suspected of having
coached her as to what to declare (Exhibit "D"); and on another occasion, at a crucial
point in her testimony, a power brownout occurred; which lasted for about twenty
minutes, throwing the courtroom into darkness, and making most of those present to
scamper for safety, and Ms. Quijano to pass over the railing of the rostrum so as to be
able to leave the courtroom. It was verified that the brownout was limited to the building
housing the Sandiganbayan, it not having affected the nearby Manila City Hall and the
Finance Building. Justice Herrera declared that the main switchboard of the
Sandiganbayan electrical system was located beside the room occupied by
Malacañang people who were keeping track of the proceedings.

Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two
Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks
after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who
jotted down the number of the car that took them away, also disappeared. On January 29, 1984, during
the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped
together with a neighbor named Rogelio Taruc, They have been missing since then, despite his
attempts to find any of them. According to him, "nobody was looking for these five persons because
they said Marcos was in Power [despite his appeal to the Minister of National Defense to locate them].
Today, still no one is looking for these people." And he appealed to the new leadership for its
assistance in learning their fate.

3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S. airmen's
proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa
Airfield or some other place, such showing would not necessarily contravene the theory of the
prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport.
Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane
merely showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans
designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming
that the said piece of evidence could go either way, it may not be successfully contended that it was
prudent or wise on the part of the prosecution to totally discard the said piece of evidence. Despite
minor inconsistencies contained therein, its introduction could have helped the cause of the
prosecution. If it were not so, or that it would even favor the defense, as averred by Justice Fernandez,
the determined effort to suppress the same would have been totally uncalled for."

4. Nine proposed rebuttal witnesses not presented.

5. The failure to exhaust available remedies against adverse developments: "When the Supreme Court
denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military
respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately
announced to media that he was not filing a motion for the reconsideration of said denial for the reason
that it would be futile to do so and foolhardy to expect a favorable action on the same. ... His posture
... is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as
soon as possible, if not of something else."

6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President
Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma denial by Justice
Pamaran of such instruction crumbles under the actuality of such directive having been complied with
to the letter. ...

"Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle the
case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to a
particular Justice, but to a division thereof. The evidence before the Comission on how the case
happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was
not done fairly or regularly.

"There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the
uncorroborated testimony of Justice Pamaran. ... Despite an announcement that Justice Escareal
would be presented by the respondents to testify on the contents of his aforesaid Memorandum, such
was not done. No reason was given why Justice Escarel could not, or would not like to testify. Neither
was any one of the officials or employees of the Sandiganbayan who, according to Justice Pamaran,
were present during the supposed raffle, presented to corroborate the claim of Justice

xxx xxx xxx

"It is also an admitted fact that the two Informations in the double murder case were filed by Justice
Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were
summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations. Such speed in the
actual assignment of the case can truly be categorized as unusual, if not extraordinary, considering
that before a case filed may be included in the raffle, there is need for a certain amount of paper work
to be undertaken. If such preliminary requirements were done in this case within the limited time
available therefor, the charge that the raffle was rushed to avoid the presence of media people would
ring with truth.

What is more intriguing is the fact that although a raffle might have been actually conducted which
resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission did
not receive any evidence on how or why it was handled personally by Justice Pamaran who wrote the
decision thereof, and not by any one of the two other members of his division. . . .

7. The custody of the accused their confinement in a military camp, instead of in a civilian jail: "When
the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an
order directing the confinement of the accused in the City Jail of Manila. This order was not carried
out in view of the information given by the Warden of the City Jail that there was no space for the
twenty-six accused in said jail. The same information was given when the custody was proposed to
be given to the National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At
that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of
the accused military personnel with their respective Commanding Officers. Justice Herrera claimed
that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had
to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was given
such copy only after sometime. ..."

8. The monitoring of proceedings and developments from Malacañang and by Malacañang

personnel: "There is an uncontradicted evidence that the progress of the proceedings in the
Sandiganbayan as well as the developments of the case outside the Court had been monitored by
Malacañang presumably for it to know what was happening and to take remedial measures as may
be necessary. Justice Pamaran had candidly admitted that television cameras "boldly carrying the
label of 'Office of the President of the Philippines' " were installed in the courtroom for that purpose.
There was a room in the Sandiganbayan, mischievously caned 'war room', wherein military and
Malacañang personnel stayed to keep track of the proceedings." the close monitoring by Malacañang
showed its results on several occasions specified in the Report. Malacañang was immediately aware
of the Japanese witness Wakamiya's presence injustice Herrera's office on August 21, 1985 and
forestalled the giving of his testimony by having the Japanese Embassy advise Wakamiya to leave
the country at once. Likewise, Col. Balbino Diego, Malacañang intelligence chief, suddenly
appeared at the National Bureau of Investigation office when the "crying lady" Rebecca Quijano was
brought there by NBI agents for interrogation and therein sought to obtain custody of her. "It is likewise
an undisputed fact," the Commission noted "that several military personnel pretended to be deputy
sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs'
uniforms." The Commission's inescapable finding. " It is abundantly clear that President Marcos did
not only give instructions as to how the case should be handled He saw to it that he would know if his
instructions will be complied with."

9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the
twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an
integral part of the scenario which was cleverly designed to accomplish two principal objectives,
seemingly conflicting in themselves, but favorable both to then administration and to the accused; to
wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged
in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same
offense in the event that President Marcos shall no longer be in power.

"In rendering its decision the Sandiganbayan overdid itself in favoring the presidential directive. Its bias
and partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution
was totally ignored and disregarded. ... It was deemed not sufficient to simply acquit all of the twenty-
six accused on the standard ground that their guilt had not been proven beyond reasonable doubt, as
was the most logical and appropriate way of justifying the acquittal in the case, there not being a total
absence of evidence that could show guilt on the part of the accused. The decision had to pronounce
them 'innocent of the crime charged on the two informations, and accordingly, they incur neither
criminal nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored
with such total absolution. ...

Doubt on the soundness of the decision entertained by one of the two justices who concurred with the
majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in
October, 1985, when the decision was being prepared, Justice Agusto Amores told him that he was
of the view that some of the accused should be convicted he having found difficulty in acquitting all of
them; however, he confided to Justice Herrera that Justice Pamaran made it clear to him and Justice
Vera Cruz that Malacañang had instructions to acquit all of the twenty-six accused (TSN, July 17,
1986, p. 49). Justice Amores also told Justice Herrera that he would confirm this statement (which
was mentioned in Justice Herrera's comment to the Second Motion for Reconsideration) if asked about
it (TSN, June 19, 1986, pp. 92-93). This testimony Justice Herrera remained unrebutted " (Emphasis
supplied)

The record shows suffocatingly that from beginning to end, the then President used, or more precisely,
misused the overwhelming resources of the government and his authoritarian powers to corrupt and
make a mockery of the judicial process in the Aquino-Galman murder cases. As graphically depicted
in the Report, supra, and borne out by the happenings (res ipsa loquitur22) since the resolution prepared by his
"Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused was
unpalatable (it would summon the demonstrators back to the streets 23 ) and at any rate was not acceptable to the Herrera prosecution panel,
the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacanang conference, would accomplish the two
principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court and of giving them through their acquittal
the legal shield of double jeopardy. 24

Indeed, the secret Malacanang conference at which the authoritarian President called together the
Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel
headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and
the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome
are without parallel and precedent in our annals and jurisprudence. To borrow a phrase from Ninoy's
April 14, 1975 letter withdrawing his petition for habeas corpus, 25"This is the evil of one-man rule at its very worst."
Our Penal Code penalizes "any executive officer who shall address any order or suggestion to any judicial authority with respect to any case
or business coming within the exclusive jurisdiction of the courts of justice." 26 His obsession for "the boys' " acquittal led to several first which
would otherwise be inexplicable:—

1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself
appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious
assassination of Ninoy Aquino and "to ventilate the truth through free, independent and dispassionate
investigation by prestigious and free investigators."

2. He cordially received the chairman with her minority report one day ahead of the four majority
members and instantly referred it to respondents "for final resolution through the legal system" as if it
were the majority and controlling report; and rebuked the four majority members when they presented
to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver
and Olivas (instead of the lesser seven under the chairman's minority report).

3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally
disregarded the Board's majority and minority findings of fact and publicly insisted that the military's
"fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers'
incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in
gunning down the alleged assassin Galman and searing his lips.
4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as
Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very
information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and

5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to
convict some of the accused) granted all 26 accused total absolution and pronounced them "innocent
of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil
liability," notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously
declared the soldiers' version of Galman being Aquino's killer a "perjured story, given deliberately and
in conspiracy with one another."

The fact of the secret Malacañang conference of January 10, 1985 at which the authoritarian President
discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter
of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by
respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator"
Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under our
penal laws, supra. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan
court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts
of being summoned to Malacañang and their ready acquiescence thereto under the circumstances
then obtaining, are in themselves pressure dramatized and exemplified. ... Verily, it can be said that
any avowal of independent action or resistance to presidential pressure became illusory from the very
moment they stepped inside Malacanang Palace on January 10, 1985."

No court whose Presiding Justice has received "orders or suggestions" from the very President who
by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a
petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatory required by the known P.D. 1850 at the
time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military
men 26-a) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of
law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be
much too easily transformed into a means of predetermining the outcome of individual cases. 26-b "This criminal collusion as to the handling
and treatment of the cases by public respondents at the secret Malacanang conference (and revealed only after fifteen months by Justice
Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now
the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has
been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an
accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There
will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a
neutral and impartial court.

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand
unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would
have no reason to exist if they were allowed to be used as mere tools of injustice, deception and
duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are
sworn and committed to render impartial justice to all alike who seek the enforcement or protection of
a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures
of politics and prejudice. More so, in the case at bar where the people and the world are entitled to
know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the
military tribunal, Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and
trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy,
as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as
the aggrieved parties plead once more for due process of law and a retrial before an impartial court
with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-
trial of the century-and that the pre-determined judgment of acquittal was unlawful and void ab initio.
1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this Court's
setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which
represents the sovereign people in criminal cases is denied due process. As the Court stressed in the
1985 case of People vs. Bocar, 27

Where the prosecution is deprived of a fair opportunity to prosecute and prove its case
its right to due process is thereby violated. 27-a

The cardinal precept is that where there is a violation of basic constitutional rights,
courts are ousted of their jurisdiction. Thus, the violation of the State's right to due
process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of
Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due process is
apparent, a decision rendered in disregard of that right is void for lack of jurisdiction
(Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-
30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered
notwithstanding such violation may be regarded as a "lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever it exhibits its head"
(Aducayen vs. Flores, supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of
jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy
(Serino vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court,
(c) after arraignment, (d) a valid plea having been entered; and (e) the case was
dismissed or otherwise terminated without the express consent of the accused (People
vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its
jurisdiction when it violated the right of the prosecution to due process.

In effect the first jeopardy was never terminated, and the remand of the criminal case
for further hearing and/or trial before the lower courts amounts merely to a continuation
of the first jeopardy, and does not expose the accused to a second jeopardy.

More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we
have held, the sham trial was but a mock trial where the authoritarian president ordered respondents
Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure
the pre-determined final outcome of acquittal and total absolution as innocent of an the respondents-
accused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end
"deactivating" himself from the case, as it was his belief that its eventual resolution was already a
foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of
the authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass,
intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully
aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and
reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the
proceedings and announced its intention to terminate the proceedings in about 6 months time or less
than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's
seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and
contempt proceedings as compared to the nil situation for the defense. Herrera likewise complained
of being "cajoled into producing witnesses and pressed on making assurances that if given a certain
period, they will be able to produce their witnesses Herrera pleaded for "a reasonable period of
preparation of its evidence" and cited other pending cases before respondent court that were pending
trial for a much longer time where the "dizzying tempo" and "fast pace" were not maintained by the
court. 28 Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan
under the constant and pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying out of his instructions.
A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment
at all. It neither binds nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw". It is a terrible and unspeakable
affront to the society and the people. To paraphrase Brandeis: 29 If the authoritarian head of the government becomes the law-breaker, he
breeds contempt for the law, he invites every man to become a law unto himself, he invites anarchy.

Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which
cannot be appealed or re-opened, without being put in double jeopardy was forcefully disposed of by
the Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general
rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts'
Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double
jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all By it no rights are
divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are
equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing
out of it are void.

|lang1033 xxx xxx xxx

"Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must balance. It
is not to be dispensed for the accused alone. The interests of the society, which they have wronged
must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A
verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society
offended, it could also mean injustice. This is where the Courts play a vital role. They render justice
where justice is due.30

2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private prosecutors had filed a
motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of
manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M.
Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice
Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution
memorandum that respondent Sandiganbayan "should not decide the case on the merits without first
making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the
Presiding Justice to show the latter's "following the script of Malacanang.

PJ PAMARAN

Well the court believes that we should proceed with the trial and then
deal later on with that. After all, the most important thing here is, shall
we say, the decision of the case.

J. HERRERA

I think more important than the decision of the case, Your Honor, is the
capacity of the justices to sit in judgment. That is more important than
anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by
Herrera). 31
But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision,
for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as
follows:

... the motion for inhibition above referred to related exclusively for the contempt
proceeding. Too, it must be remembered that the prosecution neither joined that
petition, nor did it at any time manifest a desire to file a similar motion prior to the
submission of these cases for decision. To do it now is not alone out of season but is
also a confession of official insouciance (Page 22, Decision). 32

The action for prohibition was filed in the Court to seek the disqualification of respondents Justices
pursuant to the procedure recognized by the Court in the 1969 case of Paredes vs. Gopengco 33 since
an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view
of the double jeopardy rule, not to mention the overiding and transcendental public interest that would make out a case of denial of due process
to the People if the alleged failure on the part of the Tanodbayan to present the complete evidence for the prosecution is substantiated. 34

In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting
of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been
taken cognizance of by the Court which had required the respondents', including the Sandiganbayan's,
comments. Although no restraining order was issued anew, respondent Sandiganbayan should not
have precipitately issued its decision of total absolution of all the accused pending the final action of
this Court. This is the teaching of Valdez vs. Aquilizan35, Wherein the court in setting aside the hasty convictions, ruled
that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his
decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases
[hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting
to lack of jurisdiction which substantively prejudiced the petitioner."

3. Re: Objections of respondents.-The other related objections of respondents' counsels must be

rejected in the face of the Court's declaration that the trial was a mock trial and that the pre-determined
judgment of acquittal was unlawful and void ab initio.

(a) It follows that there is no need to resort to a direct action to annul the judgment, instead of the
present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void
judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the
presentation of competent proof heard by the Commission and the Court's findings therefrom that the
proceedings were from the beginning vitiated not only by lack of due process but also by the collusion
between the public respondents (court and Tanodbayan) for the rendition of a pre-determined verdict
of acquitting all the twenty-six respondents-accused.

(b) It is manifest that this does not involve a case of mere irregularities in the conduct of the
proceedings or errors of judgment which do not affect the integrity or validity of the judgment or verdict.

(c) The contention of one of defense counsel that the State and the sovereign people are not entitled
to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited
hereinabove.

(d) The submittal of respondents-accused that they had not exerted the pressure applied by the
authoritarian president on public respondents and that no evidence was suppressed against them
must be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale
exoneration.

(e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg.
Co., Inc. 36 is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on
vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be
put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six
(6) years and one (1) month since the denial of the first motion for reconsideration), This opinion cannot be properly invoked, because here,
petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first
motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within five months
of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. The second
motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing
of the first motion for reconsideration, i.e, the secret Malacañang conference on January 10, 1985 which came to light only fifteen months later
in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian
president had dictated and pre-determined the final outcome of acquittal. Hence, the ten members of the Court (without any new appointees)
unanimously voted to admit the second motion for reconsideration.37

4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial
court with an unbiased prosecutor.-There has been the long dark night of authoritarian regime, since
the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now admitted
by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-man rule,
with the padlocking of Congress and the abolition of the office of the Vice-President.

As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members
of the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely
powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary
perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by
technicality, so that the latter emerged ugly and naked in its true manifestation."

Now that the light is emerging, the Supreme Court faces the task of restoring public faith and
confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse.
Its strength lies mainly in public confidence, based on the truth and moral force of its judgments. This
has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and
unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the
leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this
Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a
new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously
as we rejected becoming its victims. The end of one form of injustice should not become simply the
beginning of another. This simply means that the respondents accused must now face trial for the
crimes charged against them before an impartial court with an unbiased prosecutor with all due
process. What the past regime had denied the people and the aggrieved parties in the sham trial must
now be assured as much to the accused as to the aggrieved parties. The people will assuredly have
a way of knowing when justice has prevailed as well as when it has failed.

The notion nurtured under the past regime that those appointed to public office owe their primary
allegiance to the appointing authority and are accountable to him alone and not to the people or the
Constitution must be discarded. The function of the appointing authority with the mandate of the
people, under our system of government, is to fill the public posts. While the appointee may
acknowledge with gratitude the opportunity thus given of rendering public service, the appointing
authority becomes functus officio and the primary loyalty of the appointed must be rendered to the
Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the
late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever
realize that they have no constituency, serve no majority nor minority but serve only the public interest
as they see it in accordance with their oath of office, guided only, the Constitution and their own
conscience and honor.

5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable
services rendered by the Commission composed of retired Supreme Court Justice Conrado M.
Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as
members. In the pure spirit of public service, they rendered selflessly and without remuneration
thorough competent and dedicated service in discharging their tasks of hearing and receiving the
evidence, evaluating the same and submitting their Report and findings to the Court within the
scheduled period and greatly easing the Court's burden.

ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of

November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for
reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the
proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010
and 10011 entitled "People of the Philippines vs. Gen. Luther Custodia et al." and ordering a re-trial
of the said cases which should be conducted with deliberate dispatch and with careful regard for the
requirements of due process, so that the truth may be finally known and justice done to an

This resolution is immediately executory. SO ORDERED.

Yap, Cruz, Paras and Feliciano, JJ., concur.

Feria, **** Fernan and Narvasa , ***** JJ., took no part.

Footnotes

* Francis Garchitorena withdrew as co-petitioner in view of his appointment and

assumption of office as Presiding Justice of the Sandiganbayan on May 5, 1986, per
the Resolution of May 15, 1986.

*** The motion for intervention of 25 accused generals and military men and one
civilian was granted in the Court's Resolution of November 24, 1985. Petitioners in
their Manifestation of November 22, 1985 likewise impleaded the said 26 accused as
private respondents.

1 See Aquino vs. Military Commission No. 2, et al. 63 SCRA 546 (May 9, 1975).
Ninoy Aquino's motion of April 14, 1975 to withdraw his petition challenging the
jurisdiction of military tribunals over civilians with his letter stating, inter alia, his
reasons for continuing the hunger strike "(he) began ten days ago," that "(he) felt that
the case (he) had filed since 1973 in the Supreme Court had become meaningless:"
that he has decided to "place (his) fate and (his) life squarely in the hands of . . . Mr.
Marcos" was denied by a seven-to-three vote.

2 Col. G. Honasan, Time issue of March 10, 1986; Minister Enrile Newsweek issue of
March 3, 1986.

3 P.D. 1886 dated October 14, 1983 and Amendatory P.D. 1903 dated February 8,
1984.

4 As was a matter of public knowledge, the local media were subject to very tight rein
by the regime. There was the ironic case of Rommel Corro, publisher-editor of the
Philippine Times. His paper was raided, padlocked and closed down by heavily
armed soldiers on September 29, 1983, after he had published therein reprints of
wire stories on Ninoy Aquino's assassination, viz. that his assassination was the
product of a military conspiracy. On October 1, 1983, Corro himself was detained
under a Preventive Detention Order issued by the then President and he was
thereafter charged in court with inciting to sedition with no bail recommended. He
was reporting only what people here and abroad had been thinking and talking about
the Aquino assassination. The President's Fact Finding Board's official report later
bore out and affirmed what Corro had published the year before that Aquino's
assassination-murder was due to a military conspiracy. So on November 8, 1984,
upon a habeas corpus petition, the Supreme Court ordered his release on
recognizance of his own lawyers. The then President lifted the PDA. But Corro never
got back his newspaper until after the then President was deposed, overthrown and
fled the country in February, 1986.

5 The first Board headed by then Chief Justice Enrique M. Fernando and composed
of four retired Supreme Court Justices resigned, after its composition was challenged
in an action filed in the Supreme Court. Thereafter, former Senator Arturo M.
Tolentino declined appointment as board chairman.

6 Composed of retired Court of Appeals Justice Corazon J. Agrava, chairman, and

lawyer Luciano E. Salazar, businessman Dante G. Santos, labor leader Ernesto F.
Herrera and educator Amado C, Dizon members.

7 Mr. & Ms. special edition of Oct. 26-Nov. 1, 1984. p. 11.

8 Idem, p. 12.

9 Times-Journal issue of October 25, 1984.

10 Record, Vol. I, pp. 24-25.

10-a The Court per its Resolution of Nov. 14, 1985 required respondents' comment
on the petition by Nov. 18, 1985 and set the Plea for restraining order for hearing at
3:00 p.m. of the same day. Ramon C. Aquino, J., joined by Felix V. Makasiar, C.J.,
voted to dismiss outright the petition on the grounds that "The Sandiganbayan and
Tanodbayan acted within their jurisdiction in trying the case," "petitioners are neither
public prosecutors nor the accused" and have no cause for action, concluding that
the "petition is novel and unprecedented for the single reason that it is devoid of any
legal basis."

11 As per the Court's Resolution of November 18, 1985, Senior Associate Justice
Claudio Teehankee and Associate Justices Vicente Abad Santos, Efren 1. Plana,
Venicio Escolin, Hugo Gutierrez, Jr., Buenaventura de la Fuente, Serafin Cuevas,
Nestor Alampay and Lino Patajo voted to issue the restraining order, and Makasiar,
C.J. and Ramon C. Aquino, J. reiterated their votes to dismiss the petition.
Concepcion, Jr. and Melencio-Herrera, JJ. were absent and Relova, J. was on leave.

12 As per the Court's Resolution of November 28, 1985, Chief Justice Ramon C.
Aquino and Associate Justices Hermogenes Concepcion, Jr., Efren I. Plana, Venicio
Escolin Hugo Gutierrez, Jr., Buenaventura de la Fuente, Serafin R. Cuevas, Nestor
Alampay and Lino Patajo so voted to dismiss the petition, Teehankee and Abad
Santos, JJ. filed separate dissenting opinions. Gutierrez, Jr., J. filed a concurring and
dissenting opinion Melencio-Herrera and Relova, JJ. were on leave.

Teehankee, J. stated in his dissent and vote for granting petitioners the requested 5-
day period and to set the case for hearing on the merits: "I fail to see the need of
rushing the release of the majority resolution of dismissal considering that it was
made quite clear at the hearing on the petition for issuance of a temporary restraining
order on November 18, 1985 that the merits of the petition would be heard by the
Court after the parties had opportunity to file their pleadings such as an amended
petition to implead the accused as well as the People as parties respondents,
besides giving the petitioners an opportunity to reply to the comments filed by the
original respondents Sandiganbayan and Tanodbayan." He added that the petition
deserved a full-dress hearing on the merits; that the personality of the offended party
such as Saturnina D. Galman in disqualification cases to file the action independently
of the prosecution to stop the rendition of a possible judgment of acquittal by a
biased court which would leave the offended party without any remedy nor appeal in
view of the double jeopardy rule has long been recognized, since the 1969 case of
Paredes vs. Gopengco 29 SCRA 688, not to mention the overrriding and
transcending public interest.

Abad Santos, J., in dissenting and voting that "The minimum treatment which the
petition deserves is a full-dress hearing on the merits, " prefaced same with the
statement that "I never had any illusion concerning the ultimate fate of the instant
petition, but the precipitate dismissal truly amazes me."

13 Escolin, J. was absent.

14 Gutierrez, Jr., J., citing the momentous issues of due process and grave
averments of miscarriage of justice, cast a dissenting vote against the majority
resolution to deny petitioners the brief 5-day extension to file a reply and to
"immediately dismiss or deny the petition" (italics copied), stating that petitioners
should be given every reasonable opportunity to show the merit of their petition. He
"personally found it intriguing for the accused in a sensational double murder case
involving the rallying figure of the political opposition to strongly insist on an
immediate decision." He expressed "disturbance why the 'trial of the century where
all the accused, except for one civilian, are military officials and where witnesses are
understandably reluctant to come forward,' should have been televised at all. But he
concurred in the results of the majority resolution of immediate dismissal of the
petition on "the presumption that judicial acts were regularly performed and that
public officers have discharged their duties in accordance with law. "

15 The Court, then composed of ten members, Teehankee, C.J. and Concepcion Jr.,
Abad Santos, Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., Cuevas, Alampay and
Patajo, JJ. voted unanimously.

15-a Vol. III, Record, p. 703.

16 63 pages so numbered with an additional page 19-A.

17 Justice Conrado M. Vasquez was admitted to the Bar in 1937. He occupied

successively the positions of Chief, Legal Research Division, and Chief, Law
Division, of the Department of Justice, before his appointment as Judge of the Court
of First Instance (1954-1973). He was Associate Justice of the Court of Appeals for 5
years (19731978) until his compulsory retirement at age 65 on September 3, 1978.
He was called back from retirement and appointed Associate Justice of the Supreme
Court on May 14, 1982 until his compulsory retirement at age 70 on September 3,
1983.

Justice Milagros German was admitted to the Bar in 1940. She occupied the
positions of Assistant Fiscal of Manila (1948-1959); Judge, City Court of Manila
(1959-1962); Judge of the Court of Agrarian Relations (1965-1978) and Associate
Justice of the Court of Appeals (February 15, 1978 until her compulsory retirement
on October 3, 1985).

Justice Eduardo Caguioa was admitted to the Bar in 1940. He was an active law
practitioner and law professor. He was appointed Judge of the Court of First Instance
on May 12, 1971 until January 16, 1983 when he was promoted to the Court of
Appeals, until his compulsory retirement on March 14, 1986.

18 Commission's Report, pp. 29-35; emphasis supplied.

19 Commission's Report, p. 27.

20 Idem, p. 38.

21 Idem, pp. 40-43.

22 "The thing speaks for itself."

23 According to Gen. Olivas' counsel Atty. N. Quisumbing's statement at last August

26th hearing, what could have concerned President Marcos ... to me what concerned
him in the security of the State. Did he like the demonstrators to go back to the
streets.?"

24 Sec. 22 of the Bill of Rights provides: "No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another prosecution for
the same act."

25 Supra, fn. 1 on page 3 hereof.

26 Article 243, Revised Penal Code.

26-a See the writer's separate opinion in G.R. Nos. 69025 and 69046 "Arturo M. de
Castro vs. Hon. Estelito Mendoza, et al.), June 4, 1985: "Petitioners cite long-
standing laws and practice that Armed Forces officers and men are exclusively tried
and punished by the executive process of court martial pursuant to the Articles of
War. But respondent minister disclosed at the hearing of oral arguments on
November 8, 1984 the issuance of P.D. No. 1952 dated September 5, 1984
concededly not published nor disclosed prior to said date whereby 'the President
may, in the interest of justice, order or direct, at any time before arraignment, that a
particular case be tried by the appropriate civil court' and thereby waive the
mandatory court martial jurisdiction."

26-b Osmena, Jr. vs. Secretary of Justice, 41 SCRA 199, 205 (1971).

27 138 SCRA 166 (Aug. 16, 1985) per Makasiar, C.J. (retired). See also Combate
vs. San Jose, Jr., 135 SCRA 693 (April 15, 1985), per Melencio-Herrera, J. and
People vs. Catolico, 38 SCRA 389 (1971), per Teehankee, J.; People vs. Navarro,
63 SCRA 264 (1975), per E.A. Fernandez, J.
 27-a Uy vs. Genato, L-37399, 57 SCRA 123 [May 29, 1974]; Serino vs. Sosa, L-
33116, 40 SCRA 433 [Aug. 31, 1971]; People vs. Gomez, L-22345, 20 SCRA 293
[May 29, 1967]; People vs. Balisacan, L-26376, 17 SCRA 1119 [Aug. 31, 1966].

28 Deputy Tanodbayan Herrera's Comment dated April 14, 1986, see Annex "D".

29 Olmstead vs. U.S., 277 U.S. 438, dissenting opinion of Brandeis, J.

30 101 SCRA 450 (1980), per Melencio-Herrera, J.; Emphasis supplied.

31 Deputy Tanodbayan's Comments dated April l4, 1986.

32 Idem. 33

33 SCRA 688 (1969), per Teehankee, J.

34 Cf. Mateo vs. Villaluz, 50 SCRA 19; Pimentel vs. Salonga, 21 SCRA 160; Luque
vs. Kayanan, 29 SCRA 165.

35 133 SCRA 150, (1984) per Abad Santos, J. (retired); notes in brackets supplied.

36 86 SCRA 305 (1978) per Teehankee, J.

37 Except for the writer who was appointed and took his oath of Office as Chief
Justice on April 2nd. See footnote 15, on p. 13.

**** Feria, J., inhibited himself, petitioner Maria Feria being his sister.

***** Fernan, J., one of the petitioners, and Narvasa, J., who was general counsel of
the Fact Finding Board, took no part.

[G.R. No. L-46496 February 27, 1940]

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

NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.

Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial
Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.

LAUREL, J.:

The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled
case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we
reconsider the following legal conclusions of the majority opinion of this Court:
 1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que
no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada
vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o
cunado se termine la obra;

2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya
colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos
por haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados
u obreros de la misma;

3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus
osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a
readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable
de practica injusta in incurre en la sancion penal del articulo 5 de la Ley No. 213 del
Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a
un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos
por terminacion del contrato en virtud del paro.

The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement
rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations
for a new trial, and avers:

1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather
soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the
National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of
Customs and the Books of Accounts of native dealers in leather.

2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme
to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with
the Philippine Army.

3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re
supposed delay of leather soles from the States) was but a scheme to systematically prevent
the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.

4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union
dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548,
petitioner's printed memorandum, p. 25.)

5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and
elective representation are highly essential and indispensable. (Sections 2 and 5,
Commonwealth Act No. 213.)

6. That the century provisions of the Civil Code which had been (the) principal source of
dissensions and continuous civil war in Spain cannot and should not be made applicable in
interpreting and applying the salutary provisions of a modern labor legislation of American
origin where the industrial peace has always been the rule.

7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating
against the National Labor Union, Inc., and unjustly favoring the National Workers'
Brotherhood.
 8. That the exhibits hereto attached are so inaccessible to the respondents that even with the
exercise of due diligence they could not be expected to have obtained them and offered as
evidence in the Court of Industrial Relations.

9. That the attached documents and exhibits are of such far-reaching importance and effect
that their admission would necessarily mean the modification and reversal of the judgment
rendered herein.

The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the
respondent National Labor Union, Inc.

In view of the conclusion reached by us and to be herein after stead with reference to the motion for
a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary
to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of
the motion for new trial of the respondent labor union. Before doing this, however, we deem it
necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure
in cases of this nature, to make several observations regarding the nature of the powers of the Court
of Industrial Relations and emphasize certain guiding principles which should be observed in the trial
of cases brought before it. We have re-examined the entire record of the proceedings had before the
Court of Industrial Relations in this case, and we have found no substantial evidence that the exclusion
of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains
what transpired during the hearing and is more of a record of contradictory and conflicting statements
of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these
statements and expressions of views of counsel have no evidentiary value.

The Court of Industrial Relations is a special court whose functions are specifically stated in the law
of its creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated
judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike
a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding
only cases that are presented to it by the parties litigant, the function of the Court of Industrial
Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not
only exercises judicial or quasi-judicial functions in the determination of disputes between employers
and employees but its functions in the determination of disputes between employers and employees
but its functions are far more comprehensive and expensive. It has jurisdiction over the entire
Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute
arising between, and/or affecting employers and employees or laborers, and regulate the relations
between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103
(section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of
any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from
differences as regards wages, shares or compensation, hours of labor or conditions of tenancy or
employment, between landlords and tenants or farm-laborers, provided that the number of employees,
laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or agricultural dispute
is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy
and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing
and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before
hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce
them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by
the President of the Philippines, it shall investigate and study all industries established in a designated
locality, with a view to determinating the necessity and fairness of fixing and adopting for such industry
or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid
by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary
arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that
purpose, or recur to the more effective system of official investigation and compulsory arbitration in
order to determine specific controversies between labor and capital industry and in agriculture. There
is in reality here a mingling of executive and judicial functions, which is a departure from the rigid
doctrine of the separation of governmental powers.

In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September
13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673,
promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations
is not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to
justice and equity and substantial merits of the case, without regard to technicalities or legal forms and
shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules
of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section
20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands
made by the parties to the industrial or agricultural dispute, but may include in the award, order or
decision any matter or determination which may be deemed necessary or expedient for the purpose
of settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And
in the light of this legislative policy, appeals to this Court have been especially regulated by the rules
recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed
legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free
from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before
it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and
investigations of an administrative character. There are primary rights which must be respected even
in proceedings of this character:

(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. In the
language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed.
1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements
of fair play.

(2) Not only must the party be given an opportunity to present his case and to adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed.
1288.) In the language of this court in Edwards vs. McCoy, 22 Phil., 598, "the right to adduce
evidence, without the corresponding duty on the part of the board to consider it, is vain. Such
right is conspicuously futile if the person or persons to whom the evidence is presented can
thrust it aside without notice or consideration."

(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support it is a
nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates
from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both
a grant and a limitation upon power.

(4) Not only must there be some evidence to support a finding or conclusion (City of Manila
vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the
evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national
labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such
relevant evidence as a reasonable mind accept as adequate to support a conclusion."
(Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989;
National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-
Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The
statute provides that "the rules of evidence prevailing in courts of law and equity shall not be
 controlling.' The obvious purpose of this and similar provisions is to free administrative boards
from the compulsion of technical rules so that the mere admission of matter which would be
deemed incompetent inn judicial proceedings would not invalidate the administrative order.
(Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed.
860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33
S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220,
225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure
does not go far as to justify orders without a basis in evidence having rational probative force.
Mere uncorroborated hearsay or rumor does not constitute substantial evidence.
(Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No.
4, Adv. Op., p. 131.)"

(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. (Interstate Commence
Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining
the administrative tribunal to the evidence disclosed to the parties, can the latter be protected
in their right to know and meet the case against them. It should not, however, detract from their
duty actively to see that the law is enforced, and for that purpose, to use the authorized legal
methods of securing evidence and informing itself of facts material and relevant to the
controversy. Boards of inquiry may be appointed for the purpose of investigating and
determining the facts in any given case, but their report and decision are only advisory.
(Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any
industrial or agricultural dispute or any matter under its consideration or advisement to a local
board of inquiry, a provincial fiscal. a justice of the peace or any public official in any part of
the Philippines for investigation, report and recommendation, and may delegate to such board
or public official such powers and functions as the said Court of Industrial Relations may deem
necessary, but such delegation shall not affect the exercise of the Court itself of any of its
powers. (Section 10, ibid.)

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the
views of a subordinate in arriving at a decision. It may be that the volume of work is such that
it is literally Relations personally to decide all controversies coming before them. In the United
States the difficulty is solved with the enactment of statutory authority authorizing examiners
or other subordinates to render final decision, with the right to appeal to board or commission,
but in our case there is no such statutory authority.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision
in such a manner that the parties to the proceeding can know the various issues involved, and
the reasons for the decision rendered. The performance of this duty is inseparable from the
authority conferred upon it.

In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to
the alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A),
the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a
national way, a conclusion of law.

This result, however, does not now preclude the concession of a new trial prayed for the by respondent
National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro
was but a scheme adopted to systematically discharged all the members of the National Labor Union
Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the
Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers
Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the
existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits
attached to the petition to prove his substantial avernments" are so inaccessible to the respondents
that even within the exercise of due diligence they could not be expected to have obtained them and
offered as evidence in the Court of Industrial Relations", and that the documents attached to the
petition "are of such far reaching importance and effect that their admission would necessarily mean
the modification and reversal of the judgment rendered herein." We have considered the reply of Ang
Tibay and its arguments against the petition. By and large, after considerable discussions, we have
come to the conclusion that the interest of justice would be better served if the movant is given
opportunity to present at the hearing the documents referred to in his motion and such other evidence
as may be relevant to the main issue involved. The legislation which created the Court of Industrial
Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not
entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new
trial should be and the same is hereby granted, and the entire record of this case shall be remanded
to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence
as may be relevant and otherwise proceed in accordance with the requirements set forth hereinabove.
So ordered.

Avanceña, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

[G.R. No. L-56180 October 16, 1986]

ATENEO DE MANILA UNIVERSITY, petitioner,

vs.
COURT OF APPEALS, and SPOUSES ROMEO G. GUANZON and TERESITA
REGALADO, respondents.

Ernesto P. Pangalangan for petitioner.

Mirano, Mirano & Associates for private respondents.

GUTIERREZ, JR., J.:

In a letter-complaint dated December 13, 1967 addressed to Rev. William Welsh S.J., Dean of Men,
Dean of Resident Students, and Chairman of the Board of Discipline, College of Arts and Sciences,
Ateneo de Manila, Carmelita Mateo, a waitress in the cafeteria of Cervini Hall inside the university
campus charged Juan Ramon Guanzon, son of private respondents Romeo Guanzon and Teresita
Regalado, and a boarder and first year student of the university with unbecoming conduct committed
on December 12, 1967 at about 5:15 in the evening at the Cervini Hall's cafeteria, as follows:

xxx xxx xxx

Mr. Guanzon, a boarder at Cervini who I think comes from Bacolod, was asking for
"siopao." I was at the counter and I told him that the "siopao" had still to be heated and
asked him to wait for a while. Then Mr. Guanzon started mumbling bad words directed
to me, in the hearing presence of other boarders. I asked him to stop cursing, and he
told me that was none of my business. Since he seemed impatient, I was going to give
back his money without any contempt. (sic) He retorted that he did not like to accept
 the money. He got madder and started to curse again. Then he threatened to strike
me with his fist. I tried to avoid this. But then he actually struck me in my left temple.
Before he could strike again, his fellow boarders held him and Dr. Bella and Leyes
coaxed him to stop; I got hold of a bottle so I could dodge him. It was then that Fr.
Campbell arrived. The incident was hidden from Fr. Campbell by the boarders. I could
not tell him myself as I had gone into the kitchen crying because I was hurt.

The university conducted an investigation of the slapping incident. On the basis of the investigation
results, Juan Ramon was dismissed from the university.

The dismissal of Juan Ramon triggered off the filing of a complaint for damages by his parents against
the university in the then Court of First Instance of Negros Occidental at Bacolod City. The complaint
states that Juan Ramon was expelled from school without giving him a fair trial in violation of his right
to due process and that they are prominent and well known residents of Bacolod City, with the
unceremonious expulsion of their son causing them actual, moral, and exemplary damages as well as
attorney's fees.

In its answer, the university denied the material allegations of the complaint and justified the dismissal
of Juan Ramon on the ground that his unbecoming behavior is contrary to good morals, proper
decorum, and civility, that such behavior subjected him as a student to the university's disciplinary
regulations' action and sanction and that the university has the sole prerogative and authority at any
time to drop from the school a student found to be undesirable in order to preserve and maintain its
integrity and discipline so indispensable for its existence as an institution of learning.

After due trial, the lower court found for the Guanzons and ordered the university to pay them P92.00
as actual damages; P50,000.00 as moral damages; P5,000.00 as attorney's fees and to pay the costs
of the suit.

Upon appeal to the Court of Appeals by the university, the trial court's decision was initially reversed
and set aside. The complaint was dismissed.

However, upon motion for reconsideration filed by the Guanzons, the appellate court reversed its
decision and set it aside through a special division of five. In the resolution issued by the appellate
court, the lower court's decision was reinstated. The motion for reconsideration had to be referred to
a special division of five in view of the failure to reach unanimity on the resolution of the motion, the
vote of the regular division having become 2 to 1.

The petitioner now asks us to review and reverse the resolution of the division of five on the following
grounds:

ONE

THE RESOLUTION OF THE DIVISION OF FIVE COMMITTED A SERIOUS AND

GRAVE ERROR OF LAW IN RULING THAT PRIVATE RESPONDENTS WERE NOT
AFFORDED DUE PROCESS IN THE DISCIPLINE CASE AGAINST THEIR SON,
JUAN RAMON GUANZON.

TWO

THE RESOLUTION OF THE DIVISION OF FIVE ERRONEOUSLY RULED THAT THE

RESORT TO JUDICIAL REMEDY BY PRIVATE RESPONDENTS DID NOT VIOLATE
 THE RULE ON FINALITY OF ADMINISTRATION ACTION OR EXHAUSTION OF
ADMINISTRATIVE REMEDIES.

THREE

THE FINDING AND CONCLUSIONS OF THE RESOLUTION OF THE DIVISION OF

FIVE ARE TAINTED WITH GRAVE ABUSE OF DISCRETION, OR ARE
CONFLICTING, OR CONTRARY TO THE EVIDENCE IN THE CASE.

In reversing its own decision, the appellate court relied heavily on the findings of the Director of Private
Schools affirmed by the Minister of Education and the findings of the lower Court to the effect that due
process of law was not observed by the petitioner when it dismissed the private respondents' son Juan
Ramon. The resolution invoked the rule that findings of facts by administrative officers in matters falling
within their competence will not generally be reviewed by the courts, as well as the principle that
findings of facts of the trial court are entitled to great weight and should not be disturbed on appeal.

The conclusions of the Court of Appeals in its split decision are not sustained by the facts on record.

The statement regarding the finality given to factual findings of trial courts and administrative tribunals
is correct if treated as a general principle. The general principle, however, is subject to well established
exceptions.

We disregard the factual findings of trial courts when-(l) the conclusion is a finding grounded on
speculations, surmises, and conjectures; (2) the inferences made are manifestly mistaken, absurd, or
impossible; (3) there is a grave abuse of discretion; (4) there is a misapprehension of facts; and (5)
the court, in arriving at its findings, went beyond the issues of the case and the same are contrary to
the admissions of the parties or the evidence presented. (Gomez v. Intermediate Appellate Court, 135
SCRA 620; Republic v. Court of Appeals, 132 SCRA 514; Carolina Industries, Inc. v. CMS Stock
Brokerage, Inc., 97 SCRA 734; and Bacayo v. Genato, 135 SCRA 668).

A similar rule applies to administrative agencies.

By reason of their special knowledge and expertise gained from the handling of specific matters falling
under their respective jurisdictions, we ordinarily accord respect if not finality to factual findings of
administrative tribunals. However, there are exceptions to this rule and judicial power asserts itself
whenever the factual findings are not supported by evidence; where the findings are vitiated by fraud,
imposition, or collusion; where the procedure which led to the factual findings is irregular; when
palpable errors are committed; or when a grave abuse of discretion, arbitrariness, or capriciousness
is manifest. (International Hardwood and Veneer Co., of the Philippines v. Leogardo, 117 SCRA 967;
Baguio Country Club Corporation v. National Labor Relations Commission, 118 SCRA 557; Sichangco
v. Commissioner of Immigration, 94 SCRA 61; and Eusebio v. Sociedad Agricola de Balarin, 16 SCRA
569).

The Court of Appeals ruled that Juan Ramon Guanzon was not accorded due process. We fail to see
what, in the records, made the respondent court reverse its earlier and correct finding that there was
due process.

The original decision, penned by then Associate and now Presiding Justice Emilio A. Gancayco
reviews the facts on record to show that the procedures in the expulsion case were fair, open,
exhaustive, and adequate.
The decision states:

First, after the slapping incident which happened on December 12, 1967, Fr. Welsh in
his capacity as Chairman of the Board of Discipline upon receipt of the letter-complaint
(Exh. 2) of Carmelita Mateo conducted a preliminary inquiry by interviewing the
companions and friends of Juan Ramon Guanzon who were also at the cafeteria. They
confirmed the incident in question. (Exhs. 5, 6, 7 and 9).

Second, Fr. Welsh, finding that there was probable cause against Mr. Guanzon,
prepared a memorandum to the members of the Board of Discipline dated December
16, 1967 (Exh. 8) and delivered a copy each to Fr. Francisco Perez, Dr. Amada
Capawan, Mr. Piccio and Dr. Reyes.

Third, on December 14, 1967, Mr. Guanzon was fully informed of the accusation
against him when Fr. Welsh read the letter-complaint of Carmelita Mateo and he
admitted the truth of the charge. (tsn., pp. 38-39, May 9, 1970; Exh. 4).

Fourth, Fr. Welsh also sent separate letters to Rev. Antonio Cuna, Student Counselor
of the College of Arts and Sciences dated December 18, 1967 and Rev. James
Culligan, Director of Guidance of the College of Arts and Sciences dated December
18, 1967 seeking any information for guidance in the action of the Board of Discipline
regarding the case of Mr. Guanzon. (Exhs. 10-11)

Fifth, notice of the meeting of the Board of Discipline set on December 19, 1967 was
posted at the Bulletin Board of the College of Arts and Sciences and also at Dormitory
Halls (tsn., pp. 21-22, July 21, 1970) The Secretary of the Dean of Discipline personally
notified Mr. Guanzon of the meeting of the Board on December 19, 1967, he was told
to seek the help of his guardians, parents and friends including the student counsellors
in the residence halls and College of Arts and Sciences. (tsn., p. 18, July 21, 1970)

Sixth, despite notice of the Board of Discipline on December 19, 1967, Mr. Guanzon
did not care to inform his parents or guardian knowing fully well the seriousness of the
offense he had committed and instead he spoke for himself and admitted to have
slapped Carmelita Mateo. He then asked that he be excused as he wanted to catch
the boat for Bacolod City for the Christmas vacation.

Seventh, the decision of the Board of Discipline was unanimous in dropping from the
rolls of students Mr. Guanzon (Exh. 12) which was elevated to the office of the Dean
of Arts and Sciences, Rev. Joseph A. Galdon, who after a review of the case found no
ground to reverse the decision of the Board of Discipline. (Exh. 13) The case was
finally elevated to the President of the Ateneo University who sustained the decision
of the Board of Discipline (Exh. 21-A, p. 6) A motion for reconsideration was filed by
the President of the Student Council in behalf of Mr. Guanzon (Exh. 15) but the same
was denied by the President of the University.

Eighth, when the decision of the Board of Discipline was about to be carried out, Mr.
Guanzon voluntarily applied for honorable dismissal. He went around to the officials of
the university to obtain his clearance and this was approved on January 8, 1968. (Exh.
3, tsn., p. 58, May 6, 1970)

Ninth, Mr. Romeo Guanzon, father of Juan Ramon Guanzon arranged for full and
complete refund of his tuition fee for the entire second semester of the school year
 1967-68. Juan Ramon was never out of school. He was admitted at the De la Salle
College of Bacolod City and later transferred to another Jesuit School.

From the above proceedings that transpired it can not be said that Juan Ramon
Guanzon was denied due proems of law. On the contrary, we find that he was given
the full opportunity to be heard to be fully informed of the charge against him and to be
confronted of the witnesses face to face. And since he chose to remain silent and did
not bother to inform his parents or guardian about the disciplinary action taken against
him by the defendant university, neither he nor his parents should find reason to
complain.

xxx xxx xxx

When the letter-complaint was read to Juan Ramon, he admitted the altercation with the waitress and
his slapping her on the face. Rev. Welsh did not stop with the admission. He interviewed Eric Tagle,
Danny Go, Roberto Beriber, and Jose Reyes, friends of Juan Ramon who were present during the
incident.

The Board of Discipline was made up of distinguished members of the faculty-Fr. Francisco Perez,
Biology Department Chairman; Dr. Amando Capawan, a Chemistry professor; Assistant Dean Piccio
of the College; and Dr. Reyes of the same College. There is nothing in the records to cast any doubt
on their competence and impartiality insofar as this disciplinary investigation is concerned.

Juan Ramon himself appeared before the Board of Discipline. He admitted the slapping incident, then
begged to be excused so he could catch the boat for Bacolod City. Juan Ramon, therefore, was given
notice of the proceedings; he actually appeared to present his side; the investigating board acted fairly
and objectively; and all requisites of administrative due process were met.

We do not share the appellate court's view that there was no due process because the private
respondents, the parents of Juan Ramon were not given any notice of the proceedings.

Juan Ramon, who at the time was 18 years of age, was already a college student, intelligent and
mature enough to know his responsibilities. In fact, in the interview with Rev. Welsh, he even asked if
he would be expelled because of the incident. He was fully cognizant of the gravity of the offense he
committed. When informed about the December 19, 1967 meeting of the Board of Discipline, he was
asked to seek advice and assistance from his guardian and/or parents.

In the natural course of things, Juan Ramon is assumed to have reported this serious matter to his
parents. The fact that he chose to remain silent and did not inform them about his case, not even when
he went home to Bacolod City for his Christmas vacation, was not the fault of the petitioner university.

Moreover, notwithstanding the non-participation of the private respondents, the university, as stated
earlier, undertook a fair and objective investigation of the slapping incident.

Due process in administrative proceedings also requires consideration of the evidence presented and
the existence of evidence to support the decision (Halili v. Court of Industrial Relations, 136 SCRA
112).

While it may be true that Carmelita Mateo was not entirely blameless for what happened to her
because she also shouted at Juan Ramon and tried to hit him with a cardboard box top, this did not
justify Juan Ramon's slapping her in the face. The evidence clearly shows that the altercation started
with Juan Ramon's utterance of the offensive language "bilat ni bay," an Ilongo phrase which means
sex organ of a woman. It was but normal on the part of Mateo to react to the nasty remark. Moreover,
Roberto Beriber, a friend of Juan Ramon who was present during the incident told Rev. Welsh during
the investigation of the case that Juan Ramon made threatening gestures at Mateo prompting her to
pick up a cardboard box top which she threw at Juan Ramon. The incident was in public thus adding
to the humiliation of Carmelita Mateo. There was "unbecoming conduct" and pursuant to the Rules of
Discipline and Code of Ethics of the university, specifically under the 1967-1969 Catalog containing
the rules and academic regulations (Exhibit 19), this offense constituted a ground for dismissal from
the college. The action of the petitioner is sanctioned by law. Section 107 of the Manual of Regulations
for Private Schools recognizes violation of disciplinary regulations as valid ground for refusing re-
enrollment of a student (Tangonan v. Pano, 137 SCRA 245).

Before Juan Ramon was admitted to enroll, he received (1) the College of Arts and Sciences
Handbook containing the general regulations of the school and the 1967-1969 catalog of the College
of Arts and Sciences containing the disciplinary rules and academic regulations and (2) a copy of the
Rules and Regulations of the Cervini-Elizo Halls of the petitioner university one of the provisions of
which is as follows: under the title "Dining Room"-"The kitchen help and server should always be
treated with civility." Miss Mateo was employed as a waitress and precisely because of her service to
boarders, not to mention her sex, she deserved more respect and gracious treatment.

The petitioner is correct in stating that there was a serious error of law in the appellate court's ruling
on due process.

The petitioner raises the issue of "exhaustion of administrative remedies" in view of its pending appeal
from the decision of the Ministry of Education to the President of the Philippines. It argues that the
private respondents' complaint for recovery of damages filed in the lower court was premature.

The issue raised in court was whether or not the private respondents can recover damages as a result
of the dismissal of their son from the petitioner university. This is a purely legal question and nothing
of an administrative nature is to or can be done. (Gonzales v. Hechanova, 9 SCRA 230; Tapales v.
University of the Philippines, 7 SCRA 553; Limoico v. Board of Administrators, (PVA), 133 SCRA 43;
Malabanan v. Ramonte, 129 SCRA 359). The case was brought pursuant to the law on damages
provided in the Civil Code. The jurisdiction to try the case belongs to the civil courts.

There was no need to await action from Malacañang.

This brings us to the final issue which is whether or not the private respondents are entitled to
damages. There is no basis for the recovery of damages. Juan Ramon was afforded due process of
law. The penalty is based on reasonable rules and regulations applicable to all students guilty of the
same offense. He never was out of school. Before the decision could be implemented, Juan Ramon
asked for an honorable dismissal which was granted. He then enrolled at the De la Salle University of
Bacolod City and later transferred to another Jesuit school Moreover, his full and complete tuition fees
for the second semester were refunded through the representation of Mr. Romeo Guanzon, Juan
Ramon's father.

It is unfortunate of the parents suffered some embarrassment because of the incident. However, their
predicament arose from the misconduct of their own son who, in the exuberance of youth and
unfortunate loss of self control, did something which he must have, later, regretted. There was no bad
faith on the part of the university. In fact, the college authorities deferred any undue action until a
definitive decision had been rendered. The whole procedure of the disciplinary process was set up to
protect the privacy of the student involved. There is absolutely no indication ot malice,. fraud, and
improper or willful motives or conduct on the part of the Ateneo de Manila University in this case.
WHEREFORE, the instant petition is hereby GRANTED. The appellate court's resolution dated
January 26, 1981 is REVERSED and SET ASIDE. The appellate court's decision dated March 15,
1979 is REINSTATED.

SO ORDERED.

Feria (Chairman), Fernan, Paras and Feliciano, JJ., concur.

Alampay, J., took no part.

[G.R. No. 76353 May 2, 1988]

SOPHIA ALCUAZ, MA. CECILIA ALINDAYU BERNADETTE ANG, IRNA ANONAS, MA,
REMEDIOS BALTAZAR, CORAZON BUNDOC JOHN CARMONA, ANNA SHIELA DIÑOSO,
RAFAEL ENCARNACION, ET AL., petitioners,
vs.
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, Quezon City Branch (PSBA), DR.
JUAN D. LIM, in his capacity as President and Chairman of Board of Trustees of PSBA, ATTY.
P. PAULINO, etc., et al., respondents.

Rosalinda L. Santos for petitioners.

Balgos & Perez Law Office for respondents.

Merly Basco-Olano for Intervenor Union.

Camilo Flores for Intervenor

PARAS, J.:

This is a petition for review on certiorari and prohibition with motion for preliminary mandatory injunction seeking to nullify the action taken by
herein respondent Philippine School of Business Administration, Quezon City Branch, in violation of petitioners' constitutional rights.

The factual background of this case is as follows:

Petitioners are all bonafide students of the Philippine School of Business Administration, Quezon
City, while respondents, are the Philippine School of Business Administration (hereinafter referred to
as PSBA) Quezon City Branch, a 'non-stock institution of higher learning organized and existing
under the laws of the Philippines, Juan D. Lim, President and Chairman of the Board of PSBA;
Benjamin P. Paulino, Vice President for Admission and Registration of PSBA, Q.C.; Ruben Estrella,
Officer-in-Charge; and Ramon Agapay, Director of the Office of Student Affairs of PSBA, Q.C. and
Romeo Rafer, Chief Security of PSBA, Q.C.

As early as March 22, 1986, the students of the respondent school and the respondent PSBA, Q.C.
had already agreed on certain matters which would govern their activities within the school (Rollo, p.
75). Among the agreements reached at that time were:

On The exercise of student's democratic rights, it has been agreed that protest
actions can be conducted any day as long as they meet the following requirements:

a) that they be held at the PSBA quadrangle from 12:30 p.m. to 1:00 p.m. only;

b) that the protest action be removed to the PSBA parking lot if it will exceed the 1:00
time limit;

c) that if the protest move exceeds 1:00 it will be limited only up to 2:30 p.m.

d) However, before any action is taken the organizers of the protest action should
secure a permit 6 days before, or if on the same day, it still be under the "first-come-
first-serve served" basis in the use of facilities, volume of sound system shall be
adjusted so as not to disturb classes.

It is the firm stand of the administration of PSBA that it will not allow the students to
directly participate in the policy-making body of the school, as this is provided by law.
However, the administration will be open to suggestions and questions, especially
those regarding tuition fee increases and other policies that directly affect us.

In spite of the above-stated agreement, petitioners felt the need to hold dialogues. Among others
they demanded the negotiation of a new agreement, which demand was turned down by the school,
resulting in mass assemblies and barricades of school entrances (Rollo. p. 20; 347-348).
"Subsequently dialogues proved futile." Finally, petitioners received uniform letters from respondents
dated October 8, 1986 (Rollo, p. 23) giving them 3 days to explain why the school should not take /
mete out any administrative sanction on their direct participation and/or conspiring with others in the
commission of tumultuous and anarchic acts on Thursday (Oct. 2), Friday (Oct. 3) and Tuesday
(Oct. 7). The aforestated letter was answered by the counsel for the students in a reply letter dated
< äre|| anº•1àw>

October 22, 1982 Annex "E" (Rollo, P. 26).

During the regular enrollment period, petitioners and other students similarly situated were allegedly
blacklisted and denied admission for the second semester of school year 1986-1987. On October
28,1986 the President of the Student Council filed a complaint with the Director of the MECS against
the PSBA for barring the enrollment of the Student Council Officers and student leaders. (Annex "F"
Rollo, p. 30). Simultaneously on the same date, the student council wrote the President, Board of
Trustees, requesting for a written statement of the school's decision regarding their enrollment
(Rollo, p. 31). Another demand letter was made by Counsel for the students Atty. Alan Romulo Yap,
also to the President, Board of Trustees, to enroll his clients within forty-eight (48) hours (Rollo. p.
33). All these notwithstanding, no relief appeared to be forthcoming, hence this petition.
In the resolution of November 7,1986, the Second Division of this Court without giving due course to
the petition required respondents to comment thereon and set the hearing for preliminary mandatory
injunction on November 10, 1986 (Rollo, p. 35). In compliance therewith on November 9, 1986,
respondents filed their comment and opposition to the application for the issuance of a writ of
preliminary mandatory injunction praying that the petition for the issuance of a writ be denied not
only for lack of merit but also for being barred by res judicata (Rollo, p. 67).

Meanwhile, a motion for intervention was filed on November 10, 1986, by the Philippine School of
Business Administration, Quezon City Faculty Union, (PSBA, QC-FU for brevity) representing the
faculty members hereinafter referred to as intervenors, on the ground of commonality of issues and
cause of action with that of the petitioners (Rollo, p. 36).

At the hearing on the petition for preliminary mandatory injunction, where counsel for all the parties
appeared and argued their causes, the Court Resolved to grant the motion for intervention and to
require the intervenors to comment on the petition and the petitioners to file a reply thereto (Rollo, p.
66, copy corrected, p. 167). On the same day respondents filed their comment and opposition to the
application for the issuance of a writ of preliminary mandatory injunction (Rollo, pp. 67-74).

On November 12, 1986, this Court resolved to issue a temporary mandatory order directing the
respondents herein (a) to re-enroll the petitioners herein and (b) to re-admit the intervenors to their
former positions without prejudice to the investigation to be conducted by the school authorities
(Rollo, p. 141). Said Order was issued on November 14, 1986 (Rollo, pp. 142-143).

A supplemental comment and opposition to application for a writ of preliminary mandatory injunction
dated November 11, 1986 was filed by herein respondents (Rollo, p. 150), while an urgent motion to
reiterate prayer for issuance of preliminary mandatory injunction dated November 13, 1986 was filed
by herein petitioners (Rollo, pp. 162-163).

Instead of complying with tile resolution of November 12, 1986 an urgent motion for reconsideration
was filed by herein respondents on November 15, 1987 (Rollo, p. 194) praying that this Court
reconsider the aforesaid resolution.

On November 18, 1986 petitioners and intervenors filed a joint urgent motin to cite respondents in
contempt (Rollo, p. 199), while respondents filed a supplemental motion for reconsideration, also on
the same date (Rollo, p. 205).

In the resolution of November 19,1986, respondents' motion for reconsideration and sumplemental
motion for reconsideration were denied for lack of merit, and the denial was dedlared FINAL. The
urgent motion of counsel for petitioners and intervanorts to cite respondents in contempt of court
was NOTED (Rollo, p. 225).

An urgent motion for intervention and answer in intervention was filed by Nelia M. Lat, Annalisa T.
Geronimo, Leonora Q. Bueniraje, Maria L. Arañas, Eduerijes Llanto, Charita, R. Chong, Marilou
Garcia, Amelita R. Sia, Loida O. Ladines, Dominic P. Santos, Noly R. Chong, and Arthur R. Cacdac
for themselves and on behalf of other students of the PSBA, Quezon City, who are similarly situated,
to allolw them to intervene as respondents dated November 11, 1986 (Rollo, p. 227) which was
granted by this Court in a resoulution dated December 3, 1986 (Rollo, p. 240)

On November 20, 1986, the respondents filed their compliance with the temporary mandatory order;
Issued by this Court pursuant to its resolution dated November 12, 1987 (Rollo, p. 237).
On November 29, 1986, respondents filed their comment on the motion for intervention of the PSBA
Quezon City Faculty Union (Rollo, p. 252).

A consolidated reply to respondents' supplemental comment and opposition to application for a writ
of preliminary mandatory injunction, urgent motion for reconsideration and supplemental motion for
reconsideration was filed by herein in intervenors on December 2,1986 (Rollo. p. 242).

In the resolution of January 21, 1987, the petition was given due course and parties parties were
required to file their respective memoranda (Rollo, p. 266). Accordingly, respondents filed their
memorandum on February 23, 1987, (Rollo, p. 269) while the intervenor Union filed its memorandum
on March 13, 1987 (Rollo, p. 296). Respondents filed their reply memorandum on April 13, 1987
praying that the intervention of the intervening teachers be dismissed (Rollo, p. 328).

Respondents filed their manifestation and motion dated April 27, 1987 stating that pursuant to this
court's order dated November 12, 1986, the school authorities created a special investigating
committee to conduct an investigation, which submitted a report with recommendations (Rollo, p.
335), the report reading as follows:

After due deliberation, the Committee hereby submits the following recommendation:

STUDENT-RESPONDENTS

A. RENATO PALMA, BERNADETTE ANG, ROGELIO TAGANAS are hereby

recommended to be EXONERATED of all charges.

B. SOPHIA ALCUAZ (up to No. 19) are hereby recommended to be HONORABLY

DISMISSED from PSBA Q.C. roll of students without prejudice to reenrollment on a
case to case basis if found suitable and justified.

FACULTY-RESPONDENTS

A. To be EXONERATED of all charges JOSE C. ANTONIO, DONALLY BRINGAS,

DANTE CAJUCOM, LEO LOQUELLANO SOLITA A. CRUZ, and N TOLENTINO.

B. To be reprimanded with a WARNING that a repetition of similar acts in the future

will be dealt with more severely FLORANTE BAGSIC and ATENOGENES BONDOC.

C. MR. SEVERINO CORTES, JR. is hereby recommended for non-renewal of his

semester to semester appointment.

D. MESSRS. ASSER (BONG) TAMAYO and RENE Q. ENCARNACION are hereby

recommended for termination of their services as faculty members.

Respondents adopted the aforestated recommendations of the Committee and prayed that the case
be dismissed for having become moot (Rollo, p. 341). On April 30, a second urgent manifestation
and motion was filed by respondent praying that the recommendation of special Committee as
implemented by its President be made effective by the discontinuance of the summer enrollment of
petitioners Anna Shiela A. Dinoso, Zeny Gudito and Ma. Shalina Pitoy upon the refund to them of all
the fees they have paid to the school (Rollo, p. 397).
An urgent motion to cite for contempt herein respondents was filed on May 5, 1987 for violating this
court's temporary mandatory order on November 12, 1986, by discharging and striking off from the
roll of students petitioners Dinoso, Gudito and Pitoy (Rollo, p. 400) while an opposition to urgent
motion to cite for contempt was filed by herein respoddents on May 20, 1987 (Rollo, p. 413).

On May 20, 1987, Intervenor Union filed their Intervenor's Comment on Respondents' reply
memorandum and manifestation and motion with motion to cite respondent in contempt (Rollo, p.
417).

On June 8, 1987, petitioners filed their very urgent motion for an order to re-enroll (Rollo, p. 620)
followed by an urgent supplemental motion and Reply to opposition dated June 9, 1987 (Rollo, p.
623).

Later on, an Opposition to "very urgent motion for order to re-enroll was filed by herein respondents
on June 11, 1987 (Rollo, p. 625) while on June 15,1987, herein intervenor Union filed its
manifestation and motion with urgent motion reiterating intervenor's motion to cite respondents in
contempt (Rollo, p. 629).

On June 16,1987 respondents filed their opposition to urgent motion to oppose petitioners' urgent
motion dated June 9, 1987 (Rollo, p. 795)'. Petitioners filed their memorandum on June 17, 1987
(Rollo, p. 799).

On June 18, 1987, respondents filed their counter-comment and opposition to motion to cite
respondents in contempt (Rollo, p. 815). Subsequently, on June 25,1987, respondents filed their
Reply Memorandum on the petitioners' memorandum (Rollo, p. 820.).

In the resolution of June 29, 1 987 the motion of petitioners to compel respondents to readmit or re-
enroll herein petitioners was denied except in the case of three (3) student petitioners cleared by the
investigating committee and who had been recommended to be readmitted or re-enrolled. This court
further stated that the reason for the non-enrollment of the others is that the results of the
investigation conducted indicate prima facie the violation by the majority of the petitioners of the
rules and regulations of respondent school (Rollo, p. 793). The Court further resolved to require
respondent school to show cause why it should not be adjudged in contempt for refusing to reinstate
the intervenors-faculty members in the interim.

Respondents filed the manifestation on July 3, 1987 informing this Court that they did not refuse to
reinstate the intervenors/faculty members; that they were in fact actually reinstated in compliance
with the Court's temporary mandatory order (Rollo, p. 829). Hence, the motion for contempt should
be dismissed.

The pivotal issue of this case is whether or not there has been deprivation of due process for
petitioners-students who have been barred from re-enrollment and for intervenors teachers whose
services have been terminated as faculty members, on account of their participation in the
demonstration or protest charged by respondents as "anarchic" rallies, and a violation of their
constitutional rights of expression and assembly.

Petitioners allege that they have been deprived of procedural due process which requires that there
be due notice and hear hearing and of substantive due process which requires that the person or
body to conduct the investigation be competent to act and decide free from bias or prejudice. They
claim that barring them from enrollment for the second semester is equivalent to expulsion which
cannot be valid and effective without the required MEC's approval (Rollo, pp. 12-13).
Furthermore, petitioners point out that the acts of respondents constitute a wanton and deliberate
disregard of petitioners' freedom of expression (ibid).

In the same manner, intervenors-teachers claim that their constitutional right to due process has
been violated when they were summarily dismissed without affording them the opportunity to be
heard (Rollo, p. 301).

It is beyond dispute that a student once admitted by the school is considered enrolled for one
semester. It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a
college student registers in a school, it is understood that he is enrolling for the entire semester.
Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for
'one semester." It is thus evident that after the close of the first semester, the PSBA-QC no longer
has any existing contract either with the students or with the intervening teachers. Such being the
case, the charge of denial of due process is untenable. It is a time-honored principle that contracts
are respected as the law between the contracting parties (Henson vs. Intermediate Appellate Court,
et al., G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722;
Escano vs. Court of Appeals, 1 00 SCRA 197). The contract having been terminated, there is no
<äre||anº•1àw>

more contract to speak of. The school cannot be compelled to enter into another contract with said
students and teachers. "The courts, be they the original trial court or the appellate court, have no
power to make contracts for the parties." (Henson vs. Intermediate Appellate Court, et al., supra).

Under similar circumstances where students have been refused re-enrollment but without allegation
of termination of contracts as in the instant case, this Court has stressed, that due process in
disciplinary cases involving students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice. Such proceedings may be summary and
cross-examination is not even an essential part thereof. Accordingly, the minimum standards laid
down by the Court to meet the demands of procedural due process are: (1) the students must be
informed in writing of the nature and cause of any accusation against them; (2) they shall have the
right to answer the charges against them, with the assistance of counsel, if desired: (3) they shall be
informed of the evidence against them; (4) they shall have the right to adduce evidence in their own
behalf and (5) the evidence must be duly considered by the investigating committee or official
designated by the school authorities to hear and decide the case (Guzman vs. National University,
142 SCRA 706-707 [1986]).

Tested under said standards, the records show that the proceedings in the case at bar, at the outset
satisfied conditions No. 1 and 2, but, without a hearing, conditions No. 3, 4 and 5 had evidently not
been completed with.

It is not disputed that printed Rules and Regulations of the PSBA-Q.C. are distributed at the
beginning of each school year to the students including petitioners. The Rules, among other things,
provide:

Enrollment in the PSBA is contractual in nature and upon admission to the School,
the Student is deemed to have agreed to bind himself to all rules/regulations
promulgated by t he Ministry of Education, Culture and Sports. Furthermore, he
agrees that he may be required to withdraw from the School at any time for reasons
deemed sufficiently serious by the School Administration.

As previously stated, in violation of aforesaid Rules and Regulations, sore students staged noisy
demonstrations in the premises of the school. For the settlement thereof, an agreement was reached
providing among otliers the regulations for the conduct of protest actions. Despite said agreement, it
was alleged that petitioners, acting as the core group of a noisy minoritv, committed tumultuous and
anarchic acts within the premises of the school, fanned by the cooperation of the intervening
teachers, causing disruption of classes to the prejudice of the majority of the students including the
intervening ones; which acts now constitute the subject of this controversy (Rollo, p. 217 ).

Accordingly, both students and teachers were given three (3) days from receipts of letter to explain
in writing why the school should not take / mete out any administrative sanction on them in view of
their participation in the commission of tumultuous and anarchic acts on the dates stated.

Respondents alleged that none of the students ever filed a reply thereto. The records show however
that a letter was sent by Atty. Alan Rollo Yap, in behalf of all PSBA students to the President of the
School Mr. Juan D. Lim, explaining why said students are not guilty of the charges filed against them
(Rollo, pp- 26-28). Similarly, a faculty member of the PSBA filed as answer in a letter to the same
President of the school, where he denied the charges against him (Rollo, p. 52). It therefore
becomes readily apparent that while the students and the teachers have been informed in writing of
the charges filed against them and they in turn filed their answers thereto, no investigating
committee or official was designated by the school authorities to hear and decide the case upon the
presentation of evidence of both parties. Presumably, the schools banking on the theory that the
contracts have already expired, said procedural steps are no longer necessary.

At any rate, this Court obviously to insure that full justice is done both to the students and teachers
on the one hand and the school on the other, ordered an investigation to be conducted by the school
authorities, in the resolution of November 12, 1986.

The investigating committee found among others that: there were concerted mass assemblies
conducted on October 2, 3, 7 and 8 at PSBA Quezon City, which were participated in by said
students and teachers, and which disrupted classes. The disruption of classes and the barricades in
the school entrances constitute violations of existing MECS and PSBA rules and regulations (Rollo,
pp. 348-349). It is ironic that many of those who claim that their human rights have been violated are
the very ones who emasculate the human rights of the innocent majority.

Moreover, petitioners named in the report were found to be academically deficient (Rollo, p. 273)
while the intervening teachers apart from participating in acts of illegality against the school were
found to have committed various acts of misconduct (Rollo. p. 275). Accordingly, three students
were recommended for exoneration from all charges, and some to be honorably dismissed. Of the
faculty members eight were recommended to be exonerated of all charges, two to be reprimanded,
one for non-renewal of his semester to semester appointment and two to be terminated (Rollo, pp.
359-360).

The right of the school to refuse re-enrollment of students for academic delinquency and violation of
disciplinary regulations has always been recognized by this Court (Tangonan vs. Paflo, 137 SCRA
246 [1985]; Ateneo de Manila University vs. CA, 145 SCRA 100 [1986]). Thus, the Court has ruled
that the school's refusal is sanctioned by law. Sec. 107 of the Manual of Regulations for Private
Schools considers academic delinquency and violation of disciplinary regulations vs as valid grounds
for refusing re-enrollment of students. The opposite view would do violence to the academic freedom
enjoyed by the school and enshrined under the Constitution. More specifically, academic freedom is
defined by the Court as follows:

This institutional academic freedom includes not only the freedom of professionally
qualified persons to inquire, discover, publish and teach the truth as they see it in the
field of their competence subject to no control or authority except of rational methods
by which truths and conclusions are sought and established in their disciplines, but
also the right of the school or college to decide for itself, its ms and objectives, and
 how best to attain them the grant being to institutions of higher learning-free from
outside coercion or interference save possibly when the overriding public welfare
calls for some restraint. (Tangonan vs. Paño, supra).

It is well settled that by reason of their special knowledge and expertise gained from the handling of
specific matters falling under their respective jurisdictions, the Court ordinarily accords respect if not
finality to factual findings of administrative tribunals, unless the factual findings are not supported by
evidence; where the findings are vitiated by fraud, imposition or collusion; where the procedure
which led to the factual findings is irregular; when palpable errors are committed; or when a grave
abuse of discretion, arbitrariness, or capriciousness is manifest. (Ateneo de Manila University vs.
Court of Appeals, 145 SCRA 106 (1986); citing: International Hardwood and Veneer Co. of the
Philippines vs. Leonardo, 11 7 SCRA 967; Baguio Country Club Corporation vs. National Labor
Relations Commission, 118 SCRA 557; Sichangco vs. Commissioner of Immigration, 94 SCRA 61
and Eusebio vs. Sociedad Agricola de Balarin, 16 SCRA 569).

A careful scrutiny of the Report and Recommendation of the Special Investigating Committee shows
it does not fall under any of the above exceptions. On the contrary, it is readily apparent that the
investigation conducted was fair, open, exhaustive and adequate.

Accordingly, there appears to be no cogent reason to disturb the finding of said committee and as
manifested by the respondents, the report of said committee has virtually rendered this petition moot
and academic.

The urgent motion of petitioners and intervenors to cite respondents in contempt of court is likewise
untenable.

Contempt of court has been defined as a defiance of the authority, justice or dignity of the court;
such conduct as tends to bring the authority and administration of the law into disrespect or to
interfere with or prejudice parties litigant or their witnesses during litigation. (Hahn vs. Court of
Industrial Relations, 136 SCRA 57 [1985]).

In the case at bar, there appears to be no defiance of authority by the mere filing by respondents of
a motion for reconsideration of the resolution of November 12, 1986. In fact respondent school
explained that the intervenors were actually reinstated as such faculty members after the issuance of
the temporary mandatory injunction. Thus, in the compliance submitted by said school on November
20, 1 986, it ma manifested that 'without prejudice to the investigation to be conducted by the school
authorities, ... and in order that dislocations may not result with respect to the academic activities of
the students and the distribution of teaching loads among the teachers, the respondent school has
created new classes for the petitioners and the intervening teachers" beginning November 20, 1986.

The school manifested that while the investigation was going on, the intervenors-faculty members
were teaching and it was only after the investigation, that the recommendations of the Committee
were adopted by the school and the latter moved for the dismissal of the case for having become
moot and academic. Otherwise stated, respondent school has fully complied with its duties under the
temporary mandatory injunction (Rollo, pp. 830- 832).

PREMISES CONSIDERED, the petition is hereby DISMISSED, but in the light of compassionate
equity, students Who were, in view of the absence of academic deficiencies, scheduled to graduate
during the school year when this petition was filed, should be allowed to re-enroll and to graduate in
due time. No pronouncement as to costs.

SO ORDERED.
Yap, C.J., Melencio-Herrera and Padilla, JJ., concur. Sarmiento, J., dissents an a separate opinion.

[G.R. No. 89317 May 20, 1990]

ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY OCCIANO, JORGE DAYAON,
LOURDES BANARES, BARTOLOME IBASCO, EMMANUEL BARBA, SONNY MORENO,
GIOVANI PALMA, JOSELITO VILLALON, LUIS SANTOS, and DANIEL TORRES, petitioners,
vs.
HON. SANCHO DANES II, in his capacity as the Presiding Judge of 5th Regional Trial Court,
Br. 38, Daet, Camarines Norte; and MABINI COLLEGES, INC., represented by its president
ROMULO ADEVA and by the chairman of the Board of Trustees, JUSTO
LUKBAN, respondents.

Antonio A. Ayo Jr. and Soliman M. Santos, Jr., for petitioners

Pedro A. Venida Agustin A. Ferrer and Gil F. Echaro for private respondents.

CORTES, J.:

Petitioners urge the Court en banc to review and reverse the doctrine laid down in Alcuaz, et al. v. Philippine School of Business
Administration, et al., G.R. No. 76353, May 2, 1988, 161 SCRA 7, to the effect that a college student, once admitted by the school, is
considered enrolled only for one semester and, hence, may be refused readmission after the semester is over, as the contract between the
student and the school is deemed terminated.

Petitioners, students in private respondent Mabini Colleges, Inc. in Daet, Camarines Norte, were not
allowed to re-enroll by the school for the academic year 1988-1989 for leading or participating in
student mass actions against the school in the preceding semester. The subject of the protests is
not, however, made clear in the pleadings.

Petitioners filed a petition in the court a quo seeking their readmission or re-enrollment to the school,
but the trial court dismissed the petition in an order dated August 8, 1988; the dispositive portion of
which reads:

WHEREFORE, premises considered, and the fact that the ruling in the Alcuaz
vs. PSBA is exactly on the point at issue in this case but the authority of the school
regarding admission of students, save as a matter of compassionate equity — when
any of the petitioners would, at the least, qualify for re-enrollment, this petition is
hereby DISMISSED.

SO ORDERED. [Rollo, p. 12-A.]

A motion for reconsideration was filed, but this was denied by the trial court on February 24, 1989 in
this wise:

Perhaps many will agree with the critical comment of Joaquin G. Bernas S.J., and
that really there must be a better way of treating students and teachers than the
manner ruled (not suggested) by the Supreme Court, the Termination of Contract at
the end of the semester, that is.
But applicable rule in the case is that enunciated by the Supreme Court in the case
of Sophia Alcuaz, et al. vs. Philippine School of Business Administration, Quezon
City Branch (PSBA), et al., G.R. No. 76353, May 2, 1988; that of the termination at
the end of the semester, reason for the critical comments of Joaquin G. Bernas and
Doods Santos, who both do not agree with the ruling.

Petitioners' claim of lack of due process cannot prosper in view of their failure to
specifically deny respondent's affirmative defenses that "they were given all the
chances to air their grievances on February 9, 10, 16, and 18, 1988, and also on
February 22, 1988 during which they were represented by Atty. Jose L. Lapak" and
that on February 22, 1988, the date of the resumption of classes at Mabini College,
petitioners continued their rally picketing, even though without any renewal permit,
physically coercing students not to attend their classes, thereby disrupting the
scheduled classes and depriving a great majority of students of their right to be
present in their classes.

Against this backdrop, it must be noted that the petitioners waived their privilege to
be admitted for re-enrollment with respondent college when they adopted, signed,
and used its enrollment form for the first semester of school year 1988-89. Said form
specifically states that:

The Mabini College reserves the right to deny admission of students

whose scholarship and attendance are unsatisfactory and to require
withdrawal of students whose conduct discredits the institution and/or
whose activities unduly disrupts or interfere with the efficient
operation of the college. Students, therefore, are required to behave
in accord with the Mabini College code of conduct and discipline.

In addition, for the same semester, petitioners duly signed pledges which among
others uniformly reads:

In consideration of my admission to the Mabini College and of my

privileges as student of this institution, I hereby pledge/ promise
under oath to abide and comply with all the rules and regulations laid
down by competent authorities in the College Department or School
in which I am enrolled. Specifically:

xxx xxx xxx

3. I will respect my Alma Matter the Mabini College, which I represent

and see to it that I conduct myself in such a manner that the college
wig not be put to a bad light;

xxx xxx xxx

9. I will not release false or unauthorized announcement which tend

to cause confusion or disrupt the normal appreciation of the college.

Moreover, a clear legal right must first be established for a petition for mandamus to
prosper (Sec. 3, Rule 65). It being a mere privilege and not a legal right for a student
to be enrolled or reenrolled, respondent Mabini College is free to admit or not admit
the petitioners for re-enrollment in view of the academic freedom enjoyed by the
 school in accordance with the Supreme Court rulings in the cases of Garcia
vs. Faculty [Admission Committee] (G.R. No. 40779, November 28, 1975)
and Tangonon vs.Pano, et al. (L-45157, June 27, 1985).

WHEREFORE, premises and jurisprudence considered, and for lack of merit, the
motion for reconsideration of the order of this Court dated August 8, 1988 is hereby
DENIED.

SO ORDERED. [Rollo pp. 15-16.]

Hence, petitioners filed the instant petition for certiorari with prayer for preliminary mandatory
injunction.

The case was originally assigned to the Second Division of the Court, which resolved on April 10,
1989 to refer the case to the Court of Appeals for proper determination and disposition. The Court of
Appeals ordered respondents to comment on the petition and set the application for issuance of a
writ of preliminary mandatory injunction for hearing. After considering the comment and hearing the
injunction application, the Court of Appeals resolved on May 22, 1989 to certify the case back to the
Supreme Court considering that only pure questions of law were raised.

The case was assigned to the Third Division of the Court, which then transferred it to the Court en
banc on August 21, 1989 considering that the issues raised are jurisdictional. On September 14,
1989, the Court en banc accepted the case and required respondents to comment.

Respondents filed their comment on November 13, 1989. Petitioners were required to reply. As
reply, they filed a pleading entitled "Counter-Comment," to which respondents filed a rejoinder
entitled "Reply to Counter-Comment To this petitioners filed a "Rejoinder to Reply."

The issues having been joined, the case was deemed submitted.

At the heart of the controversy is the doctrine encapsuled in the following excerpt from Alcuaz:

It is beyond dispute that a student once admitted by the school is considered enrolled
for one semester. It is provided in Paragraph 137 Manual of Regulations for Private
Schools, that when a college student registers in a school, it is understood that he is
enrolling for the entire semester. Likewise, it is provided in the Manual, that the
"written contracts" required for college teachers are for "one semester." It is thus
evident that after the close of the first semester, the PSBA-QC no longer has any
existing contract either with the students or with the intervening teachers. Such being
the case, the charge of denial of due process is untenable. It is a time-honored
principle that contracts are respected as the law between the contracting parties
(Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456, February 19, 1987,
citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 100
SCRA 197). The contract having been terminated, there is no more contract to speak
of. The school cannot be compelled to enter into another contract with said students
and teachers. "The courts, be they the original trial court or the appellate court, have
no power to make contracts for the parties.' (Henson vs. Intermediate Appellate
Court, et al., supra). [At 161 SCRA 17-18; Emphasis supplied.]

In Alcuaz, the Second Division of the Court dismissed the petition filed by the students, who were
barred from re-enrolling after they led mass assemblies and put up barricades, but it added that "in
the light of compassionate equity, students who were, in view of the absence of academic
deficiencies, scheduled to graduate during the school year when this petition was filed, should be
allowed to re-enroll and to graduate in due time." [At 161 SCRA 22.] Mr. Justice Sarmiento dissented
from the majority opinion.

A motion for reconsideration was filed by the dismissed teachers in Alcuaz. The students did not
move for reconsideration. The Court en banc, to which the case had been transferred, denied the
motion for reconsideration in a Resolution dated September 29, 1989, but added as an obiter
dictum:

In conclusion, We wish to reiterate that while We value the right of students to

complete their education in the school or university of their choice, and while We fully
respect their right to resort to rallies and demonstrations for the redress of their
grievances and as part of their freedom of speech and their right to assemble, still
such rallies, demonstrations, and assemblies must always be conducted peacefully,
and without resort to intimidation, coercion, or violence. Academic freedom in all its
forms, demands the full display of discipline. To hold otherwise would be to subvert
freedom into degenerate license.

The majority's failure to expressly repudiate the "termination of contract" doctrine enunciated in the
decision provoked several dissents on that issue. Although seven (7) members of the
Court * disagreed with the Second Division's dismissal of the students petition, a definitive ruling on
the issue could not have been made because no timely motion for reconsideration was filed by the
students. (As stated above, the motion for reconsideration was filed by the dismissed teachers.)

Be that as it may, the reassessment of the doctrine laid down in Alcuaz, insofar as it allowed schools
to bar the readmission or re-enrollment of students on the ground of termination of contract, shall be
made in this case where the issue is squarely raised by petitioners [Petition, p. 4; Rollo, p. 5].

Initially, the case at bar must be put in the proper perspective. This is not a simple case of a school
refusing readmission or re-enrollment of returning students. Undisputed is the fact that the refusal to
readmit or re-enroll petitioners was decided upon and implemented by school authorities as a
reaction to student mass actions directed against the school. Petitioners are students of respondent
school who, after leading and participating in student protests, were denied readmission or re-
enrollment for the next semester. This is a case that focuses on the right to speech and assembly as
exercised by students vis-a-vis the right of school officials to discipline them.

Thus, although respondent judge believed himself bound by the ruling in Alcuaz [Order dated August
8, 1988; Rollo, pp. 1212-A], he actually viewed the issue as a conflict between students' rights and
the school's power to discipline them, to wit:

Students should not be denied their constitutional and statutory right to education,
and there is such denial when students are expelled or barred from enrollment for the
exercise of their right to free speech and peaceable assembly and/or subjected to
disciplinary action without abiding with the requirements of due process. Also, it is
understandable for student leaders to let loose extremely critical and, at times,
vitriolic language against school authorities during a student rally.

But the right of students is no license and not without limit . . . [Order of February 24,
1989; Rollo, p. 13.]

1. The Student Does Not Shed His Constitutionally Protected Rights at the Schoolgate.
Central to the democratic tradition which we cherish is the recognition and protection of the rights of
free speech and assembly. Thus, our Constitution provides:

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

the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances. [Art. III.]

This guarantee is not peculiar to the 1987 Constitution. A similar provision was found in the 1973
Constitution, as amended [Art. VI, sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the
Philippine Autonomy Act (Jones Law) [Sec. 3, para. 13], and the Philippine Bill of 1902 [Sec. 15,
para. 13]. Thus, as early as 1907, the Court in People v. Apurado, 7 Phil. 422, upheld the right to
speech and assembly to overturn a conviction for sedition. It said:

Section 5 of the Act No. 292 is as follows:

All persons who rise publicly and tumultuously in order to attain by

force or outside of legal methods any of the following objects are
guilty of sedition:

xxx xxx xxx

2. To prevent the Insular Government, or any provincial or municipal

government or any public official, from freely exercising its or his
duties or the due execution of any judicial or administrative order.

But this law must not be interpreted so as to abridge "the freedom of speech" or "the
right of the people peaceably to assemble and petition the Government for redress of
grievances" guaranteed by the express provisions of section 5 of "the Philippine Bill."

xxx xxx xxx

It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to assemble
and to petition for redress of grievances would become a delusion and a snare and
the attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor,
but the utmost discretion must be exercise in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a tumultuous
uprising. [At pp. 424, 426.]

That the protection to the cognate rights of speech and assembly guaranteed by the Constitution is
similarly available to students is well-settled in our jurisdiction. In the leading case of Malabanan
v. Ramento, G.R. No. 62270, May 21, 1984, 129 SCRA 359, the Court, speaking through Mr. Chief
Justice Fernando in an en bancdecision, declared:

xxx xxx xxx

4. Petitioners invoke their rights to peaceable assembly and free speech. They are
entitled to do so. They enjoy like the rest of the citizens the freedom to express their
views and communicate their thoughts to those disposed to listen in gatherings such
as was held in this case. They do not, to borrow from the opinion of Justice Fortas
in Tinker v. Des Moines Community School District, "shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate." While therefore, the
authority of educational institutions over the conduct of students must be recognized,
it cannot go so far as to be violative of constitutional safeguards. [At pp. 367-368.]

The facts in Malabanan are only too familiar in the genre of cases involving student mass actions:

. . . Petitioners were officers of the Supreme Student Council of respondent [Gregorio

Araneta] University. They sought and were granted by the school authorities a permit
to hold a meeting from 8:00 A.M. to 12:00 P.M. on August 27, 1982. Pursuant to
such permit, along with other students, they held a general assembly at the
Veterinary Medicine and Animal Science (VMAS) the place indicated in such permit,
not in the basketball court as therein stated but at the respond floor lobby. At such
gathering they manifested in vehement and vigorous language their opposition to the
proposed merger of the Institute of Animal Science with the Institute of Agriculture. At
10:30 A.M., the same day, they marched toward the Life Science building and
continued their rally. It was outside the area covered by their permit. They continued
their demonstration, giving utterance to language severely critical of the University
authorities and using megaphones in the process. There was, as a result,
disturbance of the classes being held. Also, the non-academic employees, within
hearing distance, stopped their work because of the noise created. They were asked
to explain on the same day why they should not be held liable for holding an illegal
assembly. Then on September 9, 1982, they were informed through a memorandum
that they were under preventive suspension for their failure to explain the holding of
an illegal assembly in front of the Life Science Building. The validity thereof was
challenged by petitioners both before the Court of First Instance of Rizal in a petition
for mandamus with damages against private respondents and before the Ministry of
Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as
Director of the National Capital Region, found petitioners guilty of the charge of
having violated par. 146(c) of the Manual for Private Schools more specifically their
holding of an illegal assembly which was characterized by the violation of the permit
granted resulting in the disturbance of classes and oral defamation. The penalty was
suspension for one academic year. . . . [At pp. 363-364.]

The Court found the penalty imposed on the students too severe and reduced it to a one-week
suspension.

The rule laid down in Malabanan was applied with equal force in three other en banc decisions of the
Court.

In Villar v. Technological Institute of the Philippines, G.R. No. 69198, April 17, 1985, 135 SCRA 706,
the Court reiterated that the exercise of the freedom of assembly could not be a basis for barring
students from enrolling. It enjoined the school and its officials from acts of surveillance, blacklisting,
suspension and refusal to re-enroll. But the Court allowed the non-enrollment of students who clearly
incurred marked academic deficiency, with the following caveat:

xxx xxx xxx

4. The academic freedom enjoyed by ''institutions of higher learning" includes the

right to set academic standards to determine under what circumstances failing
grades suffice for the expulsion of students. Once it has done so, however, that
standard should be followed meticulously. It cannot be utilized to discriminate against
those students who exercise their constitutional rights to peaceable assembly and
free speech. If it does so, then there is a legitimate grievance by the students thus
prejudiced, their right to the equal protection clause being disregarded. [At p. 711.]

In Arreza v. Gregorio Araneta University Foundation, G.R. No. 62297, June 19, 1985, 137 SCRA 94,
a case arising from almost the same facts as those in Malabanan, the Court rejected "the infliction of
the highly- disproportionate penalty of denial of enrollment and the consequent failure of senior
students to graduate, if in the exercise of the cognate rights of free speech and peaceable assembly,
improper conduct could be attributed to them. [At p. 98].

In Guzman v. National University, G.R. No. 68288, July 11, 1986, 142 SCRA 699, respondent school
was directed to allow the petitioning students to re-enroll or otherwise continue with their respective
courses, without prejudice to any disciplinary proceedings that may be conducted in connection with
their participation in the protests that led to the stoppage of classes.

2. Permissible Limitations on Student Exercise of Constitutional Rights Within the School.

While the highest regard must be afforded the exercise of the rights to free speech and assembly,
this should not be taken to mean that school authorities are virtually powerless to discipline students.
This was made clear by the Court in Malabanan, when it echoed Tinker v. Des Moines Community
School District, 393 US 503, 514: "But conduct by the student, in class or out of it, which for any
reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or
involves substantial disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech."

Thus, in Malabanan, the Court said:

xxx xxx xxx

8. It does not follow, however, that petitioners can be totally absolved for the events
that transpired. Admittedly, there was a violation of the terms of the permit. The rally
was held at a place other than that specified, in the second floor lobby, rather than
the basketball court, of the (VMAS) building of the University. Moreover, it was
continued longer than the period allowed. According to the decision of respondent
Ramento, the "concerted activity [referring to such assembly went on until 5:30 p.m."
Private respondents could thus, take disciplinary action. . . . [ At pp. 370-371].

But, as stated in Guzman, the imposition of disciplinary sanctions requires observance of procedural
due process. Thus:

. . . There are withal minimum standards which must be met to satisfy the demands
of procedural due process; and these are, that (1) the students must be informed in
 writing of the nature and cause of any accusation against them; (2) they shall have
the right to answer the charges against them, with the assistance of counsel, if
desired; (3) they shall be informed of the evidence against them; (4) they shall have
the right to adduce evidence in their own behalf; and (5) the evidence must be duly
considered by the investigating committee or official designated by the school
authorities to hear and decide the case. [At pp. 706-707].

Moreover, the penalty imposed must be proportionate to the offense committed. As stated
in Malabanan, "[i]f the concept of proportionality between the offense committed and sanction
imposed is not followed, an element of arbitrariness intrudes." [At p. 371].

3. Circumventing Established Doctrine.

Malabanan was decided by the Court in 1984. Since then, student mass actions have escalated not
only because of political events that unfurled but also because of the constantly raging controversy
over increases in tuition fees. But the over-eager hands of some school authorities were not
effectively tied down by the ruling in Malabanan. Instead of suspending or expelling student leaders
who fell into disfavor with school authorities, a new variation of the same stratagem was adopted by
the latter: refusing the students readmission or re-enrollment on grounds not related to, their alleged
misconduct of "illegal assembly" in leading or participating in student mass actions directed against
the school. Thus, the spate of expulsions or exclusions due to "academic deficiency."

4. The Nature of the Contract Between a School and its Student.

The Court, in Alcuaz, anchored its decision on the "termination of contract" theory. But it must be
repeatedly emphasized that the contract between the school and the student is not an ordinary
contract. It is imbued with public interest, considering the high priority given by the Constitution to
education and the grant to the State of supervisory and regulatory powers over all educational
institutions [See Art. XIV, secs. 1-2, 4(1)].

Respondent school cannot justify its actions by relying on Paragraph 137 of the Manual of
Regulations for Private Schools, which provides that "[w]hen a student registers in a school, it is
understood that he is enrolling . . . for the entire semester for collegiate courses," which the Court
in Alcuaz construed as authority for schools to refuse enrollment to a student on the ground that his
contract, which has a term of one semester, has already expired.

The "termination of contract" theory does not even find support in the Manual. Paragraph 137 merely
clarifies that a college student enrolls for the entire semester. It serves to protect schools wherein
tuition fees are collected and paid on an installment basis, i.e. collection and payment of the
downpayment upon enrollment and the balance before examinations. Thus, even if a student does
not complete the semester for which he was enrolled, but has stayed on for more than two weeks,
he may be required to pay his tuition fees for the whole semester before he is given his credentials
for transfer. This is the import of Paragraph 137, subsumed under Section VII on Tuition and Other
Fees, which in its totality provides:

137. When a student registers in a school, it is understood that he is enrolling for the
entire school year for elementary and secondary courses, and for the entire semester
for collegiate courses. A student who transfers or otherwise withdraws, in writing,
within two weeks after the beginning of classes and who has already paid the
pertinent tuition and other school fees in full or for any length of time longer than one
month may be charged ten per cent of the total amount due for the term if he
withdraws within the first week of classes, or twenty per cent if within the second
 week of classes, regardless of whether or not he has actually attended classes. The
student may be charged all the school fees in full if he withdraws anytime after the
second week of classes. However, if the transfer or withdrawal is due to a justifiable
reason, the student shall be charged the pertinent fees only up to and including the
last month of attendance.

Clearly, in no way may Paragraph 137 be construed to mean that the student shall be enrolled for
only one semester, and that after that semester is over his re-enrollment is dependent solely on the
sound discretion of the school. On the contrary, the Manual recognizes the right of the student to be
enrolled in his course for the entire period he is expected to complete it. Thus, Paragraph 107 states:

Every student has the right to enrol in any school, college or university upon meeting
its specific requirement and reasonable regulation: Provided, that except in the case
of academic delinquency and violation of disciplinary regulation, the student is
presumed to be qualified for enrolment for the entire period he is expected to
complete his course without prejudice to his right to transfer.

This "presumption" has been translated into a right in Batas Pambansa Blg. 232, the "Education Act
of 1982." Section 9 of this act provides:

Sec. 9. Rights of Students in School. — In addition to other rights, and subject to the
limitations prescribed by law and regulations, students and pupils in all schools shall
enjoy the following rights:

xxx xxx xxx

2. The right to freely choose their field of study subject to existing

curricula and to continue their course therein up to graduation, except
in cases of academic deficiency, or violation of disciplinary
regulations.

xxx xxx xxx

5. Academic Freedom Not a Ground for Denying Students' Rights.

Respondent judge, in his order dated February 24, 1989, stated that "respondent Mabini College is
free to admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed
by the school" [Rollo, p. 16]. To support this conclusion, he cited the cases of Garcia v. The Faculty
Admission Committee, Loyola School of Theology, G.R. No. L-40779, November 28, 1975, 68 SCRA
277, and Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137 SCRA 245, where the Court
emphasized the institutions' discretion on the admission and enrollment of students as a major
component of the academic freedom guaranteed to institutions of higher learning.

These cases involve different facts and issues. In Garcia, the issue was whether a female lay
student has a clear legal right to compel a seminary for the priesthood to admit her for theological
studies leading to a degree. In Tangonan, the issue was whether a nursing student, who was
admitted on probation and who has failed in her nursing subjects, may compel her school to readmit
her for enrollment.

Moreover, respondent judge loses sight of the Court's unequivocal statement in Villar that the right of
an institution of higher learning to set academic standards cannot be utilized to discriminate against
students who exercise their constitutional rights to speech and assembly, for otherwise there win be
a violation of their right to equal protection [At p. 711]

6. Capitol Medical Center and Licup.

In support of the action taken by respondent judge, private respondents cite the recent cases
of Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup
v. University of San Carlos, G.R. No. 85839, October 19, 1989, both decided by the First Division of
the Court.

We find the issues raised and resolved in these two decisions dissimilar from the issues in the
present case.

In Capitol Medical Center, the Court upheld the decision of the school authorities to close down the
school because of problems emanating from a labor dispute between the school and its faculty. The
Court ruled that the students had no clear legal right to demand the reopening of the school.

On the other hand, in Licup the issue resolved was whether or not the students were afforded
procedural due process before disciplinary action was taken against them. Thus, the Court stated:

The Court finds no cogent basis for the protestations of petitioners that they were
deprived of due process of law and that the investigation conducted was far from
impartial and fair. On the contrary, what appear from the record is that the charges
against petitioners were adequately established in an appropriate investigation. The
imputation of bias and partiality is not supported by the record. . . .

Moreover, Licup, far from adopting the "termination of contract" theory in Alcuaz, impliedly rejected it,
to wit:

While it is true that the students are entitled to the right to pursue their education, the
USC as an educational institution is also entitled to pursue its academic freedom and
in the process has the concommitant right to see to it that this freedom is not
jeopardized.

True, an institution of learning has a contractual obligation to afford its students a fair
opportunity to complete the course they seek to pursue. However, when a student
commits a serious breach of discipline or fails to maintain the required academic
standard, he forfeits his contractual right; and the court should not review the
discretion of university authorities. (Emphasis supplied.)

7. The Instant Case.

To justify the school's action, respondents, in their Comment dated November 12, 1989, quoting
from their answer filed in the trial court, allege that of the thirteen (13) petitioners eight (8) have
incurred failing grades, to wit:

a) Ariel Non has not only failed in four (4) subjects but also failed to cause the
submission of Form 137 which is a pre-requisite to his re- enrollment and to his
continuing as a student of Mabini;
 b) Rex Magana not only has failed in one (1) subject but also has incomplete grades
in four (4) subjects as well as no grades in two (2) subjects;

c) Elvin Agura failed in two (2) subjects and has three (3) incomplete grades;

d) Emmanuel Barba has failed in one (1) subject, and has to still take CMT 1 1 to 22.
He is already enrolled at Ago Foundation;

e) Joselito Villalon has incomplete grades in nine (9) subjects;

f) Luis Santos has failed in one (1) subject;

g) George Dayaon has failed in four (4) subjects and has to remove the incomplete
grade in one (1) subject;

h) Daniel Torres has failed in five (5) subjects, has to remove incomplete grades in
five (5) more objects and has no grade in one (1) subject. [Rollo, p. 79.]

Petitioners have not denied this, but have countered this allegation as follows:

xxx xxx xxx

(11) Petitioners were and are prepared to show, among others, that:

a) Three of the 13 of them were graduating. (Admitted in the Answer.)

b) Their academic deficiencies, if any, do not warrant non- readmission. (The Answer
indicates only 8 of the 13 as with deficiencies.)

c) Their breach of discipline, if any, was not serious.

d) The improper conduct attributed to them was during the exercise of the cognate
rights of free speech and peaceable assembly, particularly a February 1988 student
rally. (The crux of the matter, as shown even in the Answer.)

e) There was no due investigation that could serve as basis for disciplinary action. (In
effect, admitted in the Answer; even Alcuaz required due process.)

f) Respondents admit students with worse deficiencies — a clear case of

discrimination against petitioners for their role in the student rally. (An equal
protection question.)

g) Respondent school is their choice institution near their places of residence which
they can afford to pay for tertiary education, of which they have already lost one-and-
a-half school-years — in itself punishment enough. [Rollo, p. 86].

Clearly, the five (5) students who did not incur failing marks, namely, Normandy Occiano, Lourdes
Banares, Bartolome Ibasco, Sonny Moreno and Giovani Palma, were refused re-enrollment without
just cause and, hence, should be allowed to re-enroll.
On the other hand, it does not appear that the petitioners were afforded due process, in the manner
expressed in Guzman, before they were refused re-enrollment. In fact, it would appear from the
pleadings that the decision to refuse them re-enrollment because of failing grades was a mere
afterthought. It is not denied that what incurred the ire of the school authorities was the student mass
actions conducted in February 1988 and which were led and/or participated in by petitioners.
Certainly, excluding students because of failing grades when the cause for the action taken against
them undeniably related to possible breaches of discipline not only is a denial of due process but
also constitutes a violation of the basic tenets of fair play.

Moreover, of the eight (8) students with failing grades, some have only one or two failures, namely,
Rex Magana, Elvin Agura, Emmanuel Barba, and Luis Santos. Certainly, their failures cannot be
considered marked academic deficiency within the context of the Court's decision in Villar.

Then, as to the students who incurred several failing grades, namely, Ariel Non, Joselito Villalon,
George (Jorge) Dayaon, and Daniel Torres, it is not clear from respondents' enumeration whether
the failures were incurred in only one semester or through the course of several semesters of study
in the school. Neither are the academic standards of respondent school, from which we can gauge
whether or not these students are academically deficient, alleged by respondents. Thus, while the
prerogative of schools to set academic standards is recognized, we cannot affirm respondent
school's action as to petitioners Non, Villalon, Dayaon and Torres because of insufficient information.

With regard to petitioner Emmanuel Barba who respondents claim has enrolled in Ago Foundation,
such fact alone, if true, will not bar him from seeking readmission in respondent school.

However, these should not be taken to mean that no disciplinary action could have been taken
against petitioners for breach of discipline if the facts had so warranted. In line with the Court's ruling
in Malabanan, petitioners could have been subjected to disciplinary proceedings in connection with
the February 1988 mass actions. But the penalty that could have been imposed must be
commensurate to the offense committed and, as set forth in Guzman, it must be imposed only after
the requirements of procedural due process have been complied with. This is explicit from the
Manual of Regulations for Private Schools, which provides in Paragraph 145 that "[n]o penalty shall
be imposed upon any student, except for cause as defined in this Manual and/or in the school's rules
and regulations duly promulgated and only after due investigation shall have been conducted."

But this matter of disciplinary proceedings and the imposition of administrative sanctions have
become moot and academic. Petitioners, who have been refused readmission or re-enrollment and
who have been effectively excluded from respondent school for four (4) semesters, have already
been more than sufficiently penalized for any breach of discipline they might have committed when
they led and participated in the mass actions that, according to respondents, resulted in the
disruption of classes. To still subject them to disciplinary proceedings would serve no useful purpose
and would only further aggravate the strained relations between petitioners and the officials of
respondent school which necessarily resulted from the heated legal battle here, in the Court of
Appeals and before the trial court.

WHEREFORE, the petition is GRANTED. The orders of respondent judge dated August 8, 1988 and
February 24, 1989 are hereby ANNULLED. Respondent Mabini College is ORDERED to readmit
and to allow the re- enrollment of petitioners, if they are still so minded, without prejudice to its taking
the appropriate action as to petitioners Ariel Non, Joselito Villalon, George (Jorge) Dayaon and
Daniel Torres, if it is shown by their records (Form 137) that they have failed to satisfy the school's
prescribed academic standards.

SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Paras, Gancayco, Bidin, Medialdea and
Regalado, JJ., concur.

Griño-Aquino, J., is on leave.

[G.R. No. 148560. November 19, 2001]

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third
Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION
BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense
of the rights of the individual from the vast powers of the State and the inroads of societal
pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond
which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish
with very little regard to social interference - he veritably acknowledges that the exercise of rights
and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in

interfering with the liberty of action of any of their number, is self-protection. The
only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-
preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it
behooves the State to formulate a system of laws that would compel obeisance to its collective
wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism wrought
changes in the social order, carrying with it a new formulation of fundamental rights and duties
more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web
of rights and State impositions became tangled and obscured, enmeshed in threads of multiple
shades and colors, the skein irregular and broken. Antagonism, often outright collision, between
the law as the expression of the will of the State, and the zealous attempts by its members to
preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted
against State authority that judicial conscience is put to its severest test.
 Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA
7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as amended by RA 7659,[2] wishes
to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He therefore makes a
stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the
"reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens
rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due process and to be informed of the nature
and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed
constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business,

enterprise or material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the following
means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or

raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage,

kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the

National Government or any of its subdivisions, agencies or instrumentalities, or
government owned or controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock,

equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other

combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by
himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total
value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances as provided by the Revised Penal Code shall be considered
by the court. The court shall declare any and all ill-gotten wealth and their interests
and other incomes and assets including the properties and shares of stocks derived
from the deposit or investment thereof forfeited in favor of the State (underscoring
supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it

shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8)
separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as
amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3,
par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices
Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713
(The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case
No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for
Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the
Ombudsman for preliminary investigation with respect to specification "d" of the charges in the
Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses
under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits
and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised
were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of the charges and the
vagueness of the law under which they are charged were never raised in that Omnibus Motion thus
indicating the explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No.
26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of
warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the
ground that the facts alleged therein did not constitute an indictable offense since the law on which
it was based was unconstitutional for vagueness, and that the Amended Information for Plunder
charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the
Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the
Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September 2001, the
issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is
unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the
predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c)
Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the
power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is
predicated on the basic principle that a legislative measure is presumed to be in harmony with the
Constitution.[3] Courts invariably train their sights on this fundamental rule whenever a legislative
act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong
predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch
of the government to encroach upon the duties and powers of another. Thus it has been said that
the presumption is based on the deference the judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must
assume that the legislature is ever conscious of the borders and edges of its plenary powers, and
has passed the law with full knowledge of the facts and for the purpose of promoting what is right
and advancing the welfare of the majority. Hence in determining whether the acts of the legislature
are in tune with the fundamental law, courts should proceed with judicial restraint and act with
caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of
its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions
of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the
question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as
long as there is some basis for the decision of the court, the constitutionality of the challenged law
will not be touched and the case will be decided on other available grounds. Yet the force of the
presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain
of the organic law, it must be struck down on sight lest the positive commands of the fundamental
law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging
the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an
infringement of the constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the instant case to
discharge his burden and overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined parameters
which would enable the accused to determine the nature of his violation. Section 2 is
sufficiently explicit in its description of the acts, conduct and conditions required or forbidden,
and prescribes the elements of the crime with reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination

or series of the following overt or criminal acts: (a) through misappropriation,
conversion, misuse, or malversation of public funds or raids on the public treasury;
(b) by receiving, directly or indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the National Government or any of its subdivisions,
agencies or instrumentalities of Government owned or controlled corporations or
their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other combinations
and/or implementation of decrees and orders intended to benefit particular persons or
special interests; or (f) by taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the Republic of
the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who
are subject to it what conduct would render them liable to its penalties, its validity will be
sustained. It must sufficiently guide the judge in its application; the counsel, in defending one
charged with its violation; and more importantly, the accused, in identifying the realm of the
proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute
punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at
least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the
Plunder Law.
 In fact, the amended Information itself closely tracks the language of the law, indicating with
reasonable certainty the various elements of the offense which petitioner is alleged to have
committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the

Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a.
'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OREleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A.
No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within
the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO
ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,

MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-
FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE
DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED
THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion
of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax
share allocated for the province ofIlocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN
DOE a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND
OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR
MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED
FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE
OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION
FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS
AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR
RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION
SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS,
FROM THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,

PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."
 We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none -
that will confuse petitioner in his defense.Although subject to proof, these factual assertions clearly
show that the elements of the crime are easily understood and provide adequate contrast between
the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely
informed of the accusations against him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory definition of the
terms "combination" and "series" in the key phrase "a combination or series of overt or criminal
acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. Theseomissions,
according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague
and overbroad and deny him the right to be informed of the nature and cause of the accusation
against him, hence, violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and
void merely because general terms are used therein, or because of the employment of terms without
defining them;[6] much less do we have to define every word we use. Besides, there is no positive
constitutional or statutory command requiring the legislature to define each and every word in an
enactment. Congress is not restricted in the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily result in the vagueness or ambiguity of
the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which
is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be
interpreted in their natural, plain and ordinary acceptation and signification,[7] unless it is evident
that the legislature intended a technical or special legal meaning to those words.[8] The intention of
the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory
phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary
contains the following commonly accepted definition of the words "combination" and "series:"

Combination - the result or product of combining; the act or process of

combining. To combine is to bring into such close relationship as to obscure
individual characters.

Series - a number of things or events of the same class coming one after another in
spatial and temporal succession.

That Congress intended the words "combination" and "series" to be understood in their
popular meanings is pristinely evident from the legislative deliberations on the bill which
eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May

1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say

THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS
MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we
actually mean to say, if there are two or more means, we mean to say that number one
and two or number one and something else are included, how about a series of the
same act?For example, through misappropriation, conversion, misuse, will these be
included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It
cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we
seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
 REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may
already result in such a big amount, on line 25,would the Sponsor consider deleting the words a
series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as.
Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But
when we say acts of plunder there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts
falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the
public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts
falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation,
malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar.
(1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan[9] that this term is
sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or

series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1
(d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is
directed towards a common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an
'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan of action or
method' which the principal accused and public officer and others conniving with him
follow to achieve the aforesaid common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used by multiple accused vary, the
overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient
notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-
vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways,
but is most commonly stated to the effect that a statute establishing a criminal offense must define
the offense with sufficient definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is
utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by
construction.
A statute or act may be said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.[10] But the doctrine does not apply as
against legislations that are merely couched in imprecise language but which nonetheless specify
a standard though defectively phrased; or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed against such activities.[11] With
more reason, the doctrine cannot be invoked where the assailed statute is clear and free from
ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when measured by
common understanding and practice.[12] It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision
or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An
act will not be held invalid merely because it might have been more explicit in its wordings or
detailed in its provisions, especially where, because of the nature of the act, it would be impossible
to provide all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V.
Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague
and overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires
the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that
"a governmental purpose may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms."[14]
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a
statute drawn with narrow specificity."[15] The possible harm to society in permitting
some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others."[19]

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be
unconstitutional."[20] As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically are invalidated [only]
'as applied' to a particular defendant."[21] Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face and in its
entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on
the ground that they might be applied to parties not before the Court whose activities
are constitutionally protected.[22] It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made without
concrete factual settings and in sterile abstract contexts.[23] But, as the U.S. Supreme
Court pointed out in Younger v. Harris[24]

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all
the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case must
be examined in the light of the conduct with which the defendant is charged.[27]

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder
Law, so tenaciously claimed and argued at length by petitioner, is more imagined than
real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute
to furnish support to critics who cavil at the want of scientific precision in the law. Every provision
of the law should be construed in relation and with reference to every other part. To be sure, it will
take more than nitpicking to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law
is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the
law was extensively deliberated upon by the Senate and its appropriate committees by reason of
which he even registered his affirmative vote with full knowledge of its legal implications and
sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and
emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law
itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction
that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being
vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and
elastic with no common law meaning or settled definition by prior judicial or administrative
precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair
warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the
Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted"
benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith;
and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the nature and cause of
the accusation against them was violated because they were left to guess which of the three (3)
offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest
partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the
different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed,
and the use of all these phrases in the same Information does not mean that the indictment charges
three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support;
unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or
without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of
Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition,
Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt
practice and make unlawful the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in

the discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep.
Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions
penalize is the act of a public officer, in the discharge of his official, administrative or
judicial functions, in giving any private party benefits, advantage or preference which
is unjustified, unauthorized or without justification or adequate reason, through
manifest partiality, evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the
term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was
understood in its primary and general acceptation. Consequently, in that case, petitioners' objection
thereto was held inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder
Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt
the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt
or criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall
not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal
prosecution for plunder, as in all other crimes, theaccused always has in his favor the presumption
of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in
demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an
acquittal.[29] The use of the "reasonable doubt" standard is indispensable to command the respect
and confidence of the community in the application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of proof that leaves people in doubt whether
innocent men are being condemned. It is also important in our free society that every individual
going about his ordinary affairs has confidence that his government cannot adjudge him guilty of
a criminal offense without convincing a proper factfinder of his guilt with utmost
certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the
crime with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and
Rep. Pablo Garcia on this score during the deliberations in the floor of the House of
Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9

October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him
guilty of the other acts enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is less than P100 million, but
the totality of the crime committed is P100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the
crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the
robber in the information three pairs of pants, pieces of jewelry. These need not be proved
beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was
charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved
two. Now, what is required to be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the
totality of the amount is very important, I feel that such a series of overt criminal acts has to be
taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in
the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality
 of the other acts as required under this bill through the interpretation on the rule of evidence, it is
just one single act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the
crime, there is a need to prove that element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is P100 million. Now, in a series of defalcations
and other acts of corruption in the enumeration the total amount would be P110 or P120 million,
but there are certain acts that could not be proved, so, we will sum up the amounts involved in
those transactions which were proved. Now, if the amount involved in these transactions, proved
beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring
supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the
standard quantum of proof in the crime of plunder. The burden still remains with the prosecution
to prove beyond any iota of doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the crime suffers
from a dismal misconception of the import of that provision. What the prosecution needs to prove
beyond reasonable doubt is only a number of acts sufficient to form a combination or series which
would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need
to prove each and every other act alleged in the Information to have been committed by the accused
in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder
with having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by
pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to
at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern
of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the
very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined
in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion
is consistent with reason and common sense. There would be no other explanation for a
combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a
deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of
a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that
"pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged,
(as) it contains a rule of evidence and a substantive element of the crime," such that without it the
accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law
without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of
the commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised
Penal Code, but not plunder.
 JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond
reasonable doubt without applying Section 4, can you not have a conviction under the Plunder
Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the
law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and
it contains a substantive element of the crime of plunder. So, there is no way by which we can
avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can
be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern"
is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder
xxxx
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal
case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any
substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a
means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction
for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to
engender that moral certitude exacted by the fundamental law to prove the guilt of the accused
beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed
and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the
provisions without necessarily resulting in the demise of the law; after all, the existing rules on
evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a
separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application

thereof to any person or circumstance
is held invalid, theremaining provisions of this Act and the application of such
provisions to other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as
a result of the nullity of some of its provisions, assuming that to be the case although it is not really
so, all the provisions thereof should accordingly be treated independently of each other, especially
if by doing so, the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in
se which requires proof of criminal intent.Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens
rea must be proven in a prosecution for plunder. It is noteworthy that the amended
information alleges that the crime of plunder was committed "willfully, unlawfully
and criminally." It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens
rea and that is the reason he claims the statute is void, petitioner cites the following
remarks of Senator Taada made during the deliberation on S.B. No. 733:

SENATOR TAADA . . . And the evidence that will be required to convict him would
not be evidence for each and every individual criminal act but only evidence sufficient
to establish the conspiracy or scheme to commit this crime of plunder.[33]

However, Senator Taada was discussing 4 as shown by the succeeding portion of the
transcript quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in
Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a
speedier and faster process of attending to this kind of cases?

SENATOR TAADA: Yes, Mr. President . . .[34]

Senator Taada was only saying that where the charge is conspiracy to commit plunder,
the prosecution need not prove each and every criminal act done to further the scheme
or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt
or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the
acts constituting the pattern are concerned, however, the elements of the crime must
be proved and the requisite mens rea must be shown.

Indeed, 2 provides that -

Any person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal
Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens
rea is an element of plunder since the degree of responsibility of the offender is
determined by his criminal intent. It is true that 2 refers to "any person who
participates with the said public officer in the commission of an offense contributing
to the crime of plunder." There is no reason to believe, however, that it does not apply
as well to the public officer as principal in the crime. As Justice Holmes said: "We
agree to all the generalities about not supplying criminal laws with what they omit,
but there is no canon against using common sense in construing laws as saying what
they obviously mean."[35]

Finally, any doubt as to whether the crime of plunder is a malum in se must be

deemed to have been resolved in the affirmative by the decision of Congress in 1993
to include it among the heinous crimes punishable by reclusion perpetua to
death. Other heinous crimes are punished with death as a straight penalty in R.A. No.
7659. Referring to these groups of heinous crimes, this Court held in People v.
Echegaray:[36]

The evil of a crime may take various forms. There are crimes that are, by their very
nature, despicable, either because life was callously taken or the victim is treated like
an animal and utterly dehumanized as to completely disrupt the normal course of his
or her growth as a human being . . . . Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson
resulting in death; and drug offenses involving minors or resulting in the death of the
victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention, where the victim is
detained for more than three days or serious physical injuries were inflicted on the
victim or threats to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson, and carnapping where the
owner, driver or occupant of the carnapped vehicle is killed or raped, which are
penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political and
economic context in which the state finds itself to be struggling to develop and
provide for its poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality that so deeply entrenched
itself in the structures of society and the psyche of the populace. [With the
government] terribly lacking the money to provide even the most basic services to its
people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less heinous are the
effects and repercussions of crimes like qualified bribery, destructive arson resulting
in death, and drug offenses involving government officials, employees or officers, that
their perpetrators must not be allowed to cause further destruction and damage to
society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies
that it is a malum in se. For when the acts punished are inherently immoral or
inherently wrong, they are mala in se[37] and it does not matter that such acts are
punished in a special law, especially since in the case of plunder the predicate crimes
are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing Check Law (B.P.
Blg. 22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080,
on constitutional grounds. Suffice it to say however that it is now too late in the day for him to
resurrect this long dead issue, the same having been eternally consigned by People v.
Echegaray[38] to the archives of jurisprudential history. The declaration of this Court therein that
RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary
effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in
high places which have shaken its very foundation. The anatomy of graft and corruption has
become more elaborate in the corridors of time as unscrupulous people relentlesslycontrive more
and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are
imperative to fight the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder Law, especially
designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked,
will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our
nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately
eradicate this scourge and thus secure society against the avarice and other venalities in public
office.
These are times that try men's souls. In the checkered history of this nation, few issues of
national importance can equal the amount of interest and passion generated by petitioner's
ignominious fall from the highest office, and his eventual prosecution and trial under a virginal
statute. This continuing saga has driven a wedge of dissension among our people that may linger
for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism
and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder
Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the
law unconstitutional is DISMISSED for lack of merit.
 SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

[1]
Approved 12 July 1991 and took effect 8 October 1991.
[2]
Approved 13 December 1993 and took effect 31 December 1993.
[3]
Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644.
[4]
G.R. No. 87001, 4 December 1989, 179 SCRA 828.
[5]
Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).
[6]
82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768.
[7]
Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430, 448.
[8]
PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26.
[9]
Resolution of 9 July 2001.
[10]
See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.
[11]
Ibid.
[12]
State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.
[13]
Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel
Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).
[14]
NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker 364 U.S. 479, 5 L. Ed. 2d
231 (1960).
[15]
Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation marks omitted).
[16]
United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also People v. De la Piedra, G.R. No.
121777, 24 January 2001.
[17]
413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).
[18]
United States v. Salerno, supra.
[19]
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369 (1982).
[20]
United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic case is Yazoo &
Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912).
[21]
G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).
[22]
Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L. Rev. 1321 (2000)
arguing that, in an important sense, as applied challenges are the basic building blocks of constitutional adjudication
and that determinations that statutes are facially invalid properly occur only as logical outgrowths of ruling on whether
statutes may be applied to particular litigants on particular facts.
[23]
Constitution, Art. VIII, 1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 (1936); "[T]he power
of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to be constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities."
[24]
401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524
(1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388 (1989).
[25]
Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the Arts v. Finley, 524 U.S.
569, 580 (1998).
[26]
FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary of Environment and
Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate Opinion).
[27]
United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6 (1963).
[28]
G.R. No. 57841, 30 July 1982, 115 SCRA 793.
[29]
People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275.
[30]
People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.
[31]
Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: If there are lets say 150 crimes
all in all, criminal acts, whether bribery, misappropriation, malversation, extortion, you need not prove all those
beyond reasonable doubt. If you can prove by pattern, lets say 10, but each must be proved beyond reasonable doubt,
you do not have to prove 150 crimes. Thats the meaning of this (Deliberations of Committee on Constitutional
Amendments and Revision of Laws, 15 November 1988, cited in the Sandiganbayan Resolution of 9 July 2001).
[32]
TSN, 18 September 2001, pp. 115-121.
[33]
4 Record of the Senate 1316, 5 June 1989.
[34]
Ibid.
[35]
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).
[36]
267 SCRA 682, 721-2 (1997) (emphasis added).
[37]
Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).
[38]
G.R. No. 117472, 7 February 1997, 267 SCRA 682.
[G.R. No. 207264 October 22, 2013]

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

PEREZ, J.:

This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which stated that: IN
VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of discretion
on the part of the Commission on Elections. The 14 May 2013 Resolution of the COMELEC En Banc
affirming the 27 March 2013 Resolution of the COMELEC First Division is upheld."

In her Motion for Reconsideration, petitioner summarizes her submission, thus:

"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a determination
as regards her qualifications, she is merely asking the Honorable Court to affirm the jurisdiction of the
HRET to solely and exclusively pass upon such qualifications and to set aside the COMELEC
Resolutions for having denied Petitioner her right to due process and for unconstitutionally adding a
qualification not otherwise required by the constitution."1(as originally underscored)

The first part of the summary refers to the issue raised in the petition, which is:

"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is duly proclaimed
winner and who has already taken her oath of office for the position of Member of the House of
Representatives for the lone congressional district of Marinduque."2

Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus: petitioner is a
duly proclaimed winner and having taken her oath of office as member of the House of
Representatives, all questions regarding her qualifications are outside the jurisdiction of the
COMELEC and are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner's submission. The
crucial question is whether or not petitioner could be proclaimed on 18 May 2013. Differently stated,
was there basis for the proclamation of petitioner on 18 May 2013?

Dates and events indicate that there was no basis for the proclamation of petitioner on 18 May 2013.
Without the proclamation, the petitioner's oath of office is likewise baseless, and without a precedent
oath of office, there can be no valid and effective assumption of office.

We have clearly stated in our Resolution of 5 June 2013 that:

"More importantly, we cannot disregard a fact basic in this controversy – that before the proclamation
of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of
petitioner's lack of Filipino citizenship and residency via its Resolution dated 14 May 2013. After 14
May 2013, there was, before the COMELEC, no longer any pending case on petitioner's qualifications
to run for the position of Member of the House of Representatives. x x x As the point has obviously
been missed by the petitioner who continues to argue on the basis of her due proclamation, the instant
motion gives us the opportunity to highlight the undeniable fact we here repeat that the proclamation
which petitioner secured on 18 May 2013 was WITHOUT ANY BASIS.

1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013, the COMELEC
En Banc has already denied for lack o merit the petitioner's motion to reconsider the decision
o the COMELEC First Division that CANCELLED petitioner's certificate of candidacy.

2. On 18 May 2013, there was already a standing and unquestioned cancellation of petitioner's
certificate o candidacy which cancellation is a definite bar to her proclamation. On 18 May
2003, that bar has not been removed, there was not even any attempt to remove it.

3. The COMELEC Rules indicate the manner by which the impediment to proclamation may
be removed. Rule 18, Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or resolution of the Commission En Bane
shall become final and executory after five (5) days from its promulgation unless restrained by
the Supreme Court."

Within that five (5 days, petitioner had the opportunity to go to the Supreme Court for a
restraining order that will remove the immediate effect of the En Banc cancellation of her
certificate of candidacy. Within the five (5) days the Supreme Court may remove the barrier
to, and thus allow, the proclamation of petitioner. That did not happen. Petitioner did not move
to have it happen.

It is error to argue that the five days should pass before the petitioner is barred from being
proclaimed. Petitioner lost in the COMELEC as of respondent. Her certificate of candidacy has
been ordered cancelled. She could not be proclaimed because there was a final finding against
her by the COMELEC.3 She needed a restraining order from the Supreme Court to avoid the
final finding. After the five days when the decision adverse to her became executory, the need
for Supreme Court intervention became even more imperative. She would have to base her
recourse on the position that the COMELEC committed grave abuse of discretion in cancelling
her certificate of candidacy and that a restraining order, which would allow her proclamation,
will have to be based on irreparable injury and demonstrated possibility of grave abuse of
discretion on the part of the COMELEC. In this case, before and after the 18 May 2013
proclamation, there was not even an attempt at the legal remedy, clearly available to her, to
permit her proclamation. What petitioner did was to "take the law into her hands" and secure
a proclamation in complete disregard of the COMELEC En Bane decision that was final on 14
May 2013 and final and executory five days thereafter.

4. There is a reason why no mention about notice was made in Section 13(b) of Rule 18 in the
provision that the COMELEC En Bane or decision "SHALL become FINAL AND EXECUTORY
after five days from its promulgation unless restrained by the Supreme Court." On its own the
COMELEC En Bane decision, unrestrained, moves from promulgation into becoming final and
executory. This is so because in Section 5 of Rule 18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or resolutions of the Commission or a

division shall be made on a date previously fixed, of which notice shall be served in advance upon the
parties or their attorneys personally or by registered mail or by telegram.

5. Apart from the presumed notice of the COMELEC En Bane decision on the very date of its
promulgation on 14 May 2013, petitioner admitted in her petition before us that she in fact
received a copy of the decision on 16 May 20 13.4 On that date, she had absolutely no reason
why she would disregard the available legal way to remove the restraint on her proclamation,
and, more than that, to in fact secure a proclamation two days thereafter. The utter disregard
of a final COMELEC En Bane decision and of the Rule stating that her proclamation at that
point MUST be on permission by the Supreme Court is even indicative of bad faith on the part
of the petitioner.

6. The indicant is magnified by the fact that petitioner would use her tainted proclamation as
the very reason to support her argument that she could no longer be reached by the jurisdiction
of the COMELEC; and that it is the HRET that has exclusive jurisdiction over the issue of her
qualifications for office.

7. The suggestions of bad faith aside, petitioner is in error in the conclusion at which she
directs, as well as in her objective quite obvious from such conclusion. It is with her procured
proclamation that petitioner nullifies the COMELEC's decision, by Division and then En Banc
and pre-empts any Supreme Court action on the COMELEC decision. In other words,
petitioner repudiates by her proclamation all administrative and judicial actions thereon, past
and present. And by her proclamation, she claims as acquired the congressional seat that she
sought to be a candidate for. As already shown, the reasons that lead to the impermissibility
of the objective are clear. She cannot sit as Member of the House of Representatives by virtue
of a baseless proclamation knowingly taken, with knowledge of the existing legal impediment.

8. Petitioner, therefore, is in error when she posits that at present it is the HRET which has
exclusive jurisdiction over her qualifications as a Member of the House of Representatives.
That the HRET is the sole judge of all contests relating to the election, returns and
qualifications of the Members of the House of Representatives is a written constitutional
provision. It is, however unavailable to petitioner because she is NOT a Member of the House
at present. The COMELEC never ordered her proclamation as the rightful winner in the
election for such membership.5 Indeed, the action for cancellation of petitioner's certificate of
candidacy, the decision in which is the indispensable determinant of the right of petitioner to
proclamation, was correctly lodged in the COMELEC, was completely and fully litigated in the
COMELEC and was finally decided by the COMELEC. On and after 14 May 2013, there was
nothing left for the COMELEC to do to decide the case. The decision sealed the proceedings
in the COMELEC regarding petitioner's ineligibility as a candidate for Representative of
Marinduque. The decision erected the bar to petitioner's proclamation. The bar remained when
no restraining order was obtained by petitioner from the Supreme Court within five days from
14 May 2013.

9. When petitioner finally went to the Supreme Court on 10 June 2013 questioning the
COMELEC First Division ruling and the 14 May 2013 COMELEC En Bane decision, her
baseless proclamation on 18 May 2013 did not by that fact of promulgation alone become valid
and legal. A decision favorable to her by the Supreme Court regarding the decision of the
COMELEC En Bane on her certificate of candidacy was indispensably needed, not to legalize
her proclamation on 18 May 2013 but to authorize a proclamation with the Supreme Court
decision as basis.

10. The recourse taken on 25 June 2013 in the form of an original and special civil action for
a writ of Certiorari through Rule 64 of the Rules of Court is circumscribed by set rules and
principles.

a) The special action before the COMELEC which was a Petition to Cancel Certificate
of Candidacy was a SUMMARY PROCEEDING or one heard summarily. The nature
of the proceedings is best indicated by the COMELEC Rule on Special Actions, Rule
 23, Section 4 of which states that the Commission may designate any of its officials
who are members of the Philippine Bar to hear the case and to receive evidence.
COMELEC Rule 17 further provides in Section 3 that when the proceedings are
authorized to be summary, in lieu of oral testimonies, the parties may, after due notice,
be required to submit their position paper together with affidavits, counter-affidavits
and other documentary evidence; x x x and that this provision shall likewise apply to
cases where the hearing and reception of evidence are delegated by the Commission
or the Division to any of its officials x x x.

b) The special and civil action of Certiorari is defined in the Rules of Court thus:

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, or any 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 annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

The accepted definition of grave abuse of discretion is: a capricious and whimsical exercise of
judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner
because of passion or hostility.6

It is the category of the special action below providing the procedural leeway in the exercise of the
COMELEC summary jurisdiction over the case, in conjunction with the limits of the Supreme Court's
authority over the FINAL COMELEC ruling that is brought before it, that defines the way petitioner's
submission before the Court should be adjudicated. Thus further explained, the disposition of 25 June
2013 is here repeated for affirmation:

Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of "newly-
discovered evidence" without the same having been testified on and offered and admitted in evidence.
She assails the admission of the blog article of Eli Obligacion as hearsay and the photocopy of the
Certification from the Bureau of Immigration. She likewise contends that there was a violation of her
right to due process of law because she was not given the opportunity to question and present
controverting evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of
procedure in the presentation of evidence. Under Section 2 of Rule I the COMELEC Rules of
Procedure shall be liberally construed in order x x x to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before the Commission. In view
of the fact that the proceedings in a petition to deny due course or to cancel certificate of candidacy
are summary in nature, then the newly discovered evidence was properly admitted by respondent
COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was given every
opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan's petition was
filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period of
five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity given
her.
Also, in administrative proceedings, procedural due process only requires that the party be given the
opportunity or right to be heard. As held in the case of Sahali v. COMELEC:

The petitioners should be reminded that due process does not necessarily mean or require a hearing,
but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation
but also, and perhaps many times more creditably and predictable than oral argument, through
pleadings. In administrative proceedings moreover, technical rules of procedure and evidence are not
strictly applied; administrative process cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully invoked where a party was given
the chance to be he rd on his motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner s ineligible to run for office on the ground of citizenship, the COMELEC
First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public office the law
requires that she must have accomplished the following acts: (1) take the oath of allegiance to the
Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA; and (2)
make a personal and sworn renunciation of her American citizenship before any public officer
authorized to administer an oath.

In the case at bar, there s no showing that respondent complied with the aforesaid requirements. Early
on in the proceeding, respondent hammered on petitioner's lack of proof regarding her American
citizenship, contending that it is petitioner's burden to present a case. She, however, specifically
denied that she has become either a permanent resident or naturalized citizen of the USA.

Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated February 7,

2013, however, establishing the fact that respondent is a holder of an American passport which she
continues to use until June 30 2012 petitioner was able to substantiate his allegations. The burden
now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent
utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her
COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had availed
of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter, made a valid
sworn renunciation of her American citizenship, she remains to be an American citizen and is,
therefore, ineligible to run for and hold any elective public office in the Philippines." (Emphasis in the
original.)

Let us look into the events that led to this petition: In moving for the cancellation of petitioner's COC,
respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a US
passport, and that her status is that of a balikbayan. At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not
lost the same, or that she has re-acquired such status in accordance with the provisions of R.A. No.
9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted
no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A.
No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner admitted that
she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen, thus
the requirements of R.A. No. 9225 do not apply to her. Still, attached to the said motion is an Affidavit
of Renunciation of Foreign Citizenship dated 24 September 2012. Petitioner explains that she attached
said Affidavit if only to show her desire and zeal to serve the people and to comply with rules, even as
a superfluity. We cannot, however, subscribe to petitioner's explanation. If petitioner executed said
Affidavit if only to comply with the rules, then it is an admission that R.A. No. 9225 applies to her.
Petitioner cannot claim that she executed it to address the observations by the COMELEC as the
assailed Resolutions were promulgated only in 2013, while the Affidavit was executed in September
2012.1âwphi1

Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial
Administrator, to this effect: This does not mean that Petitioner did not, prior to her taking her oath of
office as Provincial Administrator, take her oath of allegiance for purposes of re-acquisition of natural-
born Filipino status, which she reserves to present in the proper proceeding. The reference to the
taking of oath of office is in order to make reference to what is already part of the records and evidence
in the present case and to avoid injecting into the records evidence on matters of fact that was not
previously passed upon by Respondent COMELEC. This statement raises a lot of questions -Did
petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino status? If she did,
why did she not present it at the earliest opportunity before the COMELEC? And is this an admission
that she has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner
contends that, since she took her oath of allegiance in connection with her appointment as Provincial
Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino
citizen.

This contention is misplaced. For one, this issue is being presented for the first time before this Court,
as it was never raised before the COMELEC. For another, said oath of allegiance cannot be
considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as
prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing
Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised
Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus,
petitioner s oath of office as Provincial Administrator cannot be considered as the oath of allegiance
in compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner s citizenship.
Petitioner, however, failed to clear such doubt.7

11. It may need pointing out that there is no conflict between the COMELEC and the HRET
insofar as the petitioner s being a Representative of Marinduque is concerned. The COMELEC
covers the matter of petitioner s certificate of candidacy, and its due course or its cancellation,
which are the pivotal conclusions that determines who can be legally proclaimed. The matter
can go to the Supreme Court but not as a continuation of the proceedings in the COMELEC,
which has in fact ended, but on an original action before the Court grounded on more than
mere error of judgment but on error of jurisdiction for grave abuse of discretion. At and after
the COMELEC En Bane decision, there is no longer any certificate cancellation matter than
can go to the HRET. In that sense, the HRET s constitutional authority opens, over the
qualification of its MEMBER, who becomes so only upon a duly and legally based
proclamation, the first and unavoidable step towards such membership. The HRET jurisdiction
over the qualification of the Member of the House of Representatives is original and exclusive,
and as such, proceeds de novo unhampered by the proceedings in the COMELEC which, as
just stated has been terminated. The HRET proceedings is a regular, not summary,
proceeding. It will determine who should be the Member of the House. It must be made clear
though, at the risk of repetitiveness, that no hiatus occurs in the representation of Marinduque
in the House because there is such a representative who shall sit as the HRET proceedings
are had till termination. Such representative is the duly proclaimed winner resulting from the
terminated case of cancellation of certificate of candidacy of petitioner. The petitioner is not,
cannot, be that representative. And this, all in all, is the crux of the dispute between the parties:
 who shall sit in the House in representation of Marinduque, while there is yet no HRET decision
on the qualifications of the Member.

12. As finale, and as explained in the discussion just done, no unwarranted haste can be
attributed, as the dissent does so, to the resolution of this petition promulgated on 25 June
2013. It was not done to prevent the exercise by the HRET of its constitutional duty. Quite the
contrary, the speedy resolution of the petition was done to pave the way for the unimpeded
performance by the HRET of its constitutional role. The petitioner can very well invoke the
authority of the HRET, but not as a sitting member of the House of Representatives.8

The inhibition of this ponente was moved for. The reason for the denial of the motion was contained
in a letter to the members of the Court on the understanding that the matter was internal to the Court.
The ponente now seeks the Courts approval to have the explanation published as it is now appended
to this Resolution.

The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It may well be in
order to remind petitioner that jurisdiction, once acquired, is not lost upon the instance of the parties,
but continues until the case is terminated.9 When petitioner filed her Petition for Certiorari jurisdiction
vested in the Court and, in fact, the Court exercised such jurisdiction when it acted on the petition.
Such jurisdiction cannot be lost by the unilateral withdrawal of the petition by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance, undoubtedly has
legal consequences. Petitioner cannot, by the mere expediency of withdrawing the petition, negative
and nullify the Court's Resolution and its legal effects. At this point, we counsel petitioner against
trifling with court processes. Having sought the jurisdiction of the Supreme Court, petitioner cannot
withdraw her petition to erase the ruling adverse to her interests. Obviously, she cannot, as she
designed below, subject to her predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the petition is affirmed.
Entry of Judgment is ordered.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

Footnotes

* On official leave.

1 Rollo, p. 325.

2 Id. at 9.

3 "The concept of 'final' judgment, as distinguished from one which has become final (or
'executory' as of right [final and executory]), is definite and settled. A 'final' judgment or order
is one that finally disposes of a case, leaving nothing more to be done by the Court in respect
thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at
the trial, declares categorically what the rights and obligations of the parties are and which
party is in the right; or a judgment or order that dismisses an action on the ground, for instance,
of res adjudicata or prescription. Once rendered, the task of the Court is ended, as far as
deciding the controversy or determining the rights and liabilities of the litigants is concerned.
Nothing more remains to be done by the Court except to await the parties' next move (which
among others, may consist of the filing of a motion for new trial or reconsideration, or the taking
of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes
'final' or, to use the established and more distinctive term, 'final and executory. ' See
Investments Inc v Court o Appeals 231 Phil. 302, 307 (1987).

Thus, when the COMELEC En Bane rendered its Resolution dated 14 May 2013, such
was a final judgment the issue of petitioner's eligibility was already definitively disposed
of and there was no longer any pending case on petitioner's qualifications to run for
office, and the COMELEC's task of ruling on the propriety of the cancellation of
petitioner's COC has ended. This final judgment, by operation of Sec. 3, Rule 37 of the
COMELEC Rules of Procedure, became final and executory on 19 May 2013, or five
days from its promulgation, as it was not RJ restrained by the Supreme Court. See
rollo pp. 163-165.

4 Rollo p. 5.

Parenthetically, the surrounding facts of the case show that the Provincial Board of
Canvassers (PBOC), as well as the parties, already had notice of the COMELEC En Bane
Resolution dated 14 May 2013 before petitioner was proclaimed. As alleged in the Comment
on the Motion for Reconsideration, and which was not disputed by petitioner, the COMELEC
En Bane found that On May 15 2013, the Villa PBOC was already in receipt of the May 14
2013 Resolution denying the motion for reconsideration of petitioner thereby affirming the
March 27, 2013 Resolution of the First Division that cancelled petitioner's COC. The receipt
was acknowledged by Rossini M. Ocsadin of the PBOC on May 15,2013. On May 16,2013,
Atty. Nelia S. Aureus, petitioner's counsel of record, received a copy of the same resolution.
On May 18 2013, the PBOC under ARED Ignacio is already aware of the May 14,2013
Resolution of the Commission En Bane which is already on file with the PBOC. Furthermore,
PBOC members Provincial Prosecutor Bimbo Mercado and Magdalena Lim knew of the 14
May 2013 Resolution since they are the original members of the Villa PBOC. However, while
counsel for petitioner, Atty. Aureus, already received a copy of said resolution on May 16,
2013, the counsel for petitioner, Atty. Ferdinand Rivera (who is an UNA lawyer), who appeared
before the Ignacio PBOC on May 18,2013, misrepresented to said PBOC that [petitioner] has
not received a copy of the said May 14 2013 Resolution of this Commission. This has mislead
the Ignacio PBOC in deciding to proclaim petitioner believing that petitioner is not yet bound
by the said resolution. See rollo pp. 392-393.

5 In the case at bar, as the PBOC and the parties all had notice of the COMELEC En Bane
Resolution dated 14 May 2013, the PBOC should have, at the very least, suspended
petitioner's proclamation. Although COMELEC Resolution No. 9648 or the General
Instructions for the Board of Canvassers on the Consolidation/Canvass and Transmission of
Votes in Connection with the 3 May 2013 National and Local Elections authorizes the PBOC
to proclaim a winning candidate if there is a pending disqualification or petition to cancel COC
and no order of suspension was issued by the COMELEC, the cancellation of petitioner's COC,
as ordered in the COMELEC En Banc Resolution dated 14 May 2013, is of greater significance
and import than an order of suspension of proclamation. The PBOC should have taken the
COMELEC En Bane s cue. To now countenance this precipitate act of the PBOC is to allow it
to render nugatory a decision of its superior. Besides, on 18 May 2013, there was no longer
any pending case as the COMELEC En Bane Resolution dated 14 May 2013 is already a final
judgment.
 6 Beluso v. COMELEC, G.R. No. 180711, 22 June 2010, 621 SCRA 450, 456.

In De Ia Cruz v COMELEC and Pacete the Court ruled that the COMELEC being a
specialized agency tasked with the supervision of elections all over the country, its
factual findings, conclusions, rulings and decisions rendered on matters falling within
its competence shall not be interfered with by this Court in the absence of grave abuse
of discretion or any jurisdictional infirmity or error of law. (G.R. No. 192221, 13
November 2012, 685 SCRA 347, 359).

In Mastura v. COMELEC, the Court ruled that the rule that factual findings of
administrative bodies will not be disturbed by the courts of justice except when there
is absolutely no evidence or no substantial evidence in support of such findings should
be applied with greater force when it concerns the COMELEC, as the framers of the
Constitution intended to place the COMELEC -created and explicitly made
independent by the Constitution itself -on a level higher than statutory administrative
organs. The COMELEC has broad powers to ascertain the true results of the election
by means available to it. For the attainment of that end, it is not strictly bound by the
rut of evidence. (G R. No. 124 521, 29 January 1998, 285 SCRA 493, 499).

7 Rollo, pp. 181-184.

8Petitioner before the HRET, can manifest what she desires in this Motion for Reconsideration
concerning the existence of Identification Certificate No. 05-05424 issued by the Bureau of
Immigration dated 13 October 2005, ostensibly recognizing her as a citizen of the Philippines
as per (pursuant) to the Citizenship Retention and Re-acquisition Act of 2003 (R.A. 9225) in
relation to Administrative Order No. 91, S. of 24 and Memorandum Circular No. AFF-2004-01
per order of this no. CRR No. 05-10/03-5455 AFF No. 05-4961 signed by Commissioner
ALIPIO F. FERNANDEZ dated October 6 2005. Petitioner belatedly submitted this
manifestation in her Motion for Reconsideration for the stated reason that her records with the
Bureau of Immigration has been missing. Fortunately, her Index Card on file at the Fingerprint
Section was found and it became the basis, together with Petitioner's copy of the certificate
which she just unearthed lately, for the issuance of a certified true copy of her Identification
Certificate No. 05-05424." See rollo, pp. 364 and 311.

9 Office of the Ombudsman v. Rodriguez G.R. No. 172700,23 July 2010, 625 SCRA 299, 307.

[G.R. No. 74457 March 20, 1987]

RESTITUTO YNOT, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike —
but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial movement
of carabaos and the slaughtering of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage
to circumvent the prohibition against inter-provincial movement of carabaos by
transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No.
626 and the prohibition against interprovincial movement of carabaos, it is necessary
to strengthen the said Executive Order and provide for the disposition of the
carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef shall
be transported from one province to another. The carabao or carabeef transported in
violation of this Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection Commission may
ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen
hundred and eighty.

(SGD.) FERDINAND
E. MARCOS

Preside
nt

Republic of the
Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13,
1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation
of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the
constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and
he has now come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is
that the penalty is invalid because it is imposed without according the owner a right to be heard
before a competent and impartial court as guaranteed by due process. He complains that the
measure should not have been presumed, and so sustained, as constitutional. There is also a
challenge to the improper exercise of the legislative power by the former President under
Amendment No. 6 of the 1973 Constitution. 4

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable
here. The question raised there was the necessity of the previous publication of the measure in the
Official Gazette before it could be considered enforceable. We imposed the requirement then on the
basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor
General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely
different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the
Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of
court may provide," final judgments and orders of lower courts in, among others, all cases involving
the constitutionality of certain measures. 7 This simply means that the resolution of such cases may
be made in the first instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any
means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity,
and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to
recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary,
they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished
jurist, 9 and so heal the wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of
the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of
his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his
judgment there existed a grave emergency or a threat or imminence thereof or whenever the
legislature failed or was unable to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As there is no showing of any exigency to
justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question
the validity of the executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase that will lead to
protracted discussion not really necessary at this time, we reserve resolution of this matter until a
more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question
of due process.
It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and
the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel,
Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due
process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all
seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make
it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process
lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave
the import of the protection open-ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter
of the U.S. Supreme Court, for example, would go no farther than to define due process — and in so doing sums it all up — as nothing more
and nothing less than "the embodiment of the sporting Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for
themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every
person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear
"the other side" before an opinion is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half must also be considered if an
impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the bow the arrow, in leading to
the correct ruling after examination of the problem not from one or the other perspective only but in
its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be
dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of
the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be
secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and
empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a
number of admitted exceptions. The conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on human experience or there is a rational
connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances
when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad
dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic
materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be
summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous
judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to
protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular function of the police power which both
restraints and is restrained by due process. The police power is simply defined as the power
inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By
reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most
demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is
hemmed in by the police power, which affects him even before he is born and follows him still after he is dead — from the womb to beyond
the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even
so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A,
amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except
under certain conditions. The original measure was issued for the reason, as expressed in one of its
Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for
the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need
for such a measure. In the face of the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would have been remiss, indeed, if it
had not taken steps to protect and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding
and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted
thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by
farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural
output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in
their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals.
The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows:

To justify the State in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of
a particular class, require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. ...

From what has been said, we think it is clear that the enactment of the provisions of
the statute under consideration was required by "the interests of the public generally,
as distinguished from those of a particular class" and that the prohibition of the
slaughter of carabaos for human consumption, so long as these animals are fit for
agricultural work or draft purposes was a "reasonably necessary" limitation on private
ownership, to protect the community from the loss of the services of such animals by
their slaughter by improvident owners, tempted either by greed of momentary gain,
or by a desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor
man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for
the purpose sought to be achieved and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where
they are at least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original
executive order, we cannot say with equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that to strengthen the original measure,
Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on
their movement, providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The object of the
prohibition escapes us. The reasonable connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it
could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of
the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow
that there is no reason either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still
have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty
is outright confiscation of the carabao or carabeef being transported, to be meted out by the
executive authorities, usually the police only. In the Toribio Case, the statute was sustained because
the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and
conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed,
and the property being transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were
returned to the petitioner only after he had filed a complaint for recovery and given
a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the
carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the
petitioner and immediately imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a chance to be heard, thus
denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly
dispensed with notwithstanding the usual requirement for these minimum guarantees of due
process. It is also conceded that summary action may be validly taken in administrative proceedings
as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted,
however. there is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action calling for the petitioner's
peremptory treatment. The properties involved were not even inimical per se as to require their
instant destruction. There certainly was no reason why the offense prohibited by the executive order
should not have been proved first in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been
pronounced not by the police only but by a court of justice, which alone would have had the authority
to impose the prescribed penalty, and only after trial and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated
property as prescribed in the questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other similar institutions as the Chairman
of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption.
One searches in vain for the usual standard and the reasonable guidelines, or better still, the
limitations that the said officers must observe when they make their distribution. There is none. Their
options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can supply the answer, they and they
alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there
is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that
keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative
powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power
because the method employed to conserve the carabaos is not reasonably necessary to the purpose
of the law and, worse, is unduly oppressive. Due process is violated because the owner of the
property confiscated is denied the right to be heard in his defense and is immediately condemned
and punished. The conferment on the administrative authorities of the power to adjudge the guilt of
the supposed offender is a clear encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to
the officers mentioned therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A
unconstitutional.

We agree with the respondent court, however, that the police station commander who confiscated
the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance
with its mandate. The law was at that time presumptively valid, and it was his obligation, as a
member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate
of the President, to declare the executive order unconstitutional and, on his own responsibility alone,
refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had
the competence, for all their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them,
this case would never have reached us and the taking of his property under the challenged measure
would have become a faitaccompli despite its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump boat in Masbate and another violation
of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest,
and soon forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to
invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like
expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of
protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if
they are kept bright and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed
above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.

SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento
and Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.

Footnotes

1 Rollo, pp. 7, 28, 29, 34.

2 Ibid, pp. 6-7; Annex B.

* Justices Coquia, Bartolome and Ejercito.

3 Rollo, pp. 6, 27, 33.

** Judge Bethel Katalbas-Moscardon.

4 Ibid., pp. 10; 11, 14-16, 76.

5 129 SCRA 174.

6 Espiritu vs. Fugoso, 81 Phil. 637.

7 Sec. 5[2(a)], Art. X, 1973 Constitution; Sec. 5[2(a)], Art.VIII, 1987 Constitution.

8 J. Laurel, concurring opinion, Zandueta v. dela Costa, 66 Phil. 615, 627.

9 US v. Bustos, 37 Phil. 731.

10 I Aruego, The Framing of the Constitution (1936), pp. 153-159.

11 Twinning vs. New Jersey, 211 U.S. 78.

12 Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-33.

13 David vs. Aquilizan, 94 SCRA 707; Montemayor vs. Araneta Univ. Foundation, 77
SCRA 321; Lentelera vs. Amores, 70 SCRA 37; Flores vs. Buencamino, 74 SCRA
332; DBP vs. Bautista, 26 SCRA 366; Ong Su Han vs. Gutierrez David, 76 Phil. 546;
Banco-Espanol Filipino vs. Palanca, 37 Phil. 921.

14 Dartmouth College vs. Woodward, 4 Wheaton 518.

15 Manley v. Georgia, 279 U.S. 1; 1 Cooley 639.

16 Suntay vs. People, 101 Phil. 833.

17 12 C.J. 1224.
 18 People v. Vera Reyes, 67 Phil. 190; Ermita-Malate Hotel & Motel Operators Ass.
v. City Mayor, 20 SCRA 849; Primicias v. Fugoso 80 Phil. 75; U.S. v. Ling Su Tan, 10
Phil. 114; Collins v. Wolfe 5 Phil. 297; U.S. v. Gomez Jesus, 31 Phil. 225; Churchill v.
Rafferty 32 Phil. 603.

19 15 Phil. 85.

20 New Filipino Maritime Agencies, Inc. vs. Rivera, 83 SCRA 602; Gas Corp. of the
Phil. vs. Inciong 93 SCRA 653.

21 supra.

[G.R. No. L-22008 November 3, 1924]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JULIO POMAR, defendant-appellant.

Araneta and Zaragoza for appellant.

Attorney-General Villa-Real for appellee.

JOHNSON, J.:

The only question presented by this appeal is whether or not the provisions of sections 13 and 15 of
Act No. 3071 are a reasonable and lawful exercise of the police power of the state.

It appears from the record that on the 26th day of October, 1923, the prosecuting attorney of the City
of Manila presented a complaint in the Court of First Instance, accusing the defendant of a violation of
section 13 in connection with section 15 of Act No. 3071 of the Philippine Legislature. The complaint
alleged:

That on or about the 27th day of August, 1923, and sometime prior thereto, in the City of
Manila, Philippine Islands, the said accused, being the manager and person in charge of La
Flor de la Isabela, a tobacco factory pertaining to La Campania General de Tabacos de
Filipinas, a corporation duly authorized to transact business in said city, and having, during the
year 1923, in his employ and service as cigar-maker in said factory, a woman by the name of
Macaria Fajardo, whom he granted vacation leave which began on the 16th day of July, 1923,
by reason of her pregnancy, did then and there willfully, unlawfully, and feloniously fail and
refuse to pay to said woman the sum of eighty pesos (P80), Philippine currency, to which she
was entitled as her regular wages corresponding to thirty days before and thirty days after her
delivery and confinement which took place on the 12th day of August, 1923, despite and over
the demands made by her, the said Macaria Fajardo, upon said accused, to do so.

To said complaint, the defendant demurred, alleging that the facts therein contained did not constitute
an offense. The demurrer was overruled, whereupon the defendant answered and admitted at the trial
all of the allegations contained in the complaint, and contended that the provisions of said Act No.
3071, upon which the complaint was based were illegal, unconstitutional and void.

Upon a consideration of the facts charged in the complaint and admitted by the defendant, the
Honorable C. A. Imperial, judge, found the defendant guilty of the alleged offense described in the
complaint, and sentenced him to pay a fine of P50, in accordance with the provisions of section 15 of
said Act, to suffer subsidiary imprisonment in case of insolvency, and to pay the costs.

From that sentence the defendant appealed, and now makes the following assignments of error: That
the court erred in overruling the demurrer; in convicting him of the crime charged in the information;
and in not declaring section 13 of Act No. 3071, unconstitutional:

Section 13 of Act No. 3071 is as follows:

Every person, firm or corporation owning or managing a factory, shop or place of labor of any
description shall be obliged to grant to any woman employed by it as laborer who may be
pregnant, thirty days vacation with pay before and another thirty days after
confinement: Provided, That the employer shall not discharge such laborer without just cause,
under the penalty of being required to pay to her wages equivalent to the total of two months
counted from the day of her that power is, its limits and scope. Literally hundreds of decisions
have been promulgated in which definitions of the police power have been attempted. An
examination of all of said decisions will show that the definitions are generally limited to
particular cases and examples, which are as varied as they are numerous.

By reason of the constant growth of public opinion in a developing civilization, the term "police
power" has never been, and we do not believe can be, clearly and definitely defined and
circumscribed. One hundred years ago, for example, it is doubtful whether the most eminent
jurist, or court, or legislature would have for a moment thought that, by any possibility, a law
providing for the destruction of a building in which alcoholic liquors were sold, was within a
reasonable and lawful exercise of the police power. (Mugler vs. Kansas, 123 U. S., 623.) The
development of civilization, the rapidly increasing population, the growth of public opinion, with
a desire on the part of the masses and of the government to look after and care for the interests
of the individuals of the state, have brought within the police power of the state many questions
for regulation which formerly were not so considered. In a republican form of government
public sentiment wields a tremendous influence upon what the state may or may not do, for
the protection of the health and public morals of the people. Yet, neither public sentiment, nor
a desire to ameliorate the public morals of the people of the state will justify the promulgation
of a law which contravenes the express provisions of the fundamental law of the people — the
constitutional of the state.

A definition of the police power of the state must depend upon the particular law and the
particular facts to which it is to be applied. The many definitions which have been given by the
highest courts may be examined, however, for the purpose of giving us a compass or guide to
assist us in arriving at a correct conclusion in the particular case before us. Sir William
Blackstone, one of the greatest expounders of the common law, defines the police power as
"the due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like
members of a well-governed family, are bound to conform their general behavior to the rules
of propriety, good neighborhood, and good manners, and to be decent, industrious, and
inoffensive in their respective stations." (4 Blackstone's Commentaries, 162.)

Mr. Jeremy Bentham, in his General View of Public Offenses, gives us the following definition:
"Police is in general a system of precaution, either for the prevention of crimes or of calamities.
Its business may be distributed into eight distinct branches: (1) Police for the prevention of
offenses; (2) police for the prevention of calamities; (3) police for the prevention of endemic
diseased; (4) police of charity; (5) police of interior communications; (6) police of public
amusements; (7) police for recent intelligence; (8) police for registration."
Mr. Justice Cooley, perhaps the greatest expounder of the American Constitution, says: "The
police power is the power vested in the legislature by the constitution to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall judge to be for the good
and welfare of the commonwealth, and of the subject of the same. . . ." (Cooley's Constitutional
Limitations, p. 830.)

In the case of Commonwealth of Massachusetts vs. Alger (7 Cushing, 53), we find a very
comprehensive definition of the police power of the state. In that case it appears that the colony
of Massachusetts in 1647 adopted an Act to preserve the harbor of Boston and to prevent
encroachments therein. The defendant unlawfully erected, built, and established in said
harbor, and extended beyond said lines and into and over the tide water of the Commonwealth
a certain superstructure, obstruction and encumbrance. Said Act provided a penalty for its
violation of a fine of not less than $1,000 nor more than $5,000 for every offense, and for the
destruction of said buildings, or structures, or obstructions as a public nuisance. Alger was
arrested and placed on trial for violation of said Act. His defense was that the Act of 1647 was
illegal and void, because if permitted the destruction of private property without compensation.
Mr. Justice Shaw, speaking for the court in that said, said: "We think it is a settled principle,
growing out of the nature of well-ordered civil society, that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of it
may be so regulated, that it shall not be injurious to the equal environment of others having an
equal right to the enjoyment of their property nor injurious to the rights of the community. All
property in this commonwealth, as well that in the interior as that bordering on tide waters, is
derived directly or indirectly from the government and held subject to those general
regulations, which are necessary to the common good and general welfare. Rights of property,
like all other social and conventional rights, are subject to such reasonable limitations in their
enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and
regulations established by law, as the legislature, under the governing and controlling power
vested in them by the constitution, may think necessary and expedient." Mr. Justice Shaw
further adds: ". . . The power we allude to is rather the police power, the power vested in the
legislature by the constitution, to make, ordain and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to
the constitution, as they shall judge to be for the good and welfare of the commonwealth, and
of the subjects of the same."

This court has, in the case of Case vs. Board of Health and Heiser (24 Phil., 250), in discussing
the police power of the state, had occasion to say: ". . . It is a well settled principle, growing
out of the nature of well-ordered and civilized society, that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of it
shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment
of their property, nor injurious to the rights of the community. All property in the state is held
subject to its general regulations, which are necessary to the common good and general
welfare. Rights of property, like all other social and conventional rights, are subject to such
reasonable limitations in their enjoyment as shall prevent them from being injurious, and to
such reasonable restraints and regulations, established by law, as the legislature, under the
governing and controlling power vested in them by the constitution, may think necessary and
expedient. The state, under the police power is possessed with plenary power to deal with all
matters relating to the general health, morals, and safety of the people, so long as it does not
contravene any positive inhibition of the organic law and providing that such power is not
exercised in such a manner as to justify the interference of the courts to prevent positive wrong
and oppression."
Many other definitions have been given not only by the Supreme Court of the United States
but by the Supreme Court of every state of the Union. The foregoing definitions, however,
cover the general field of all of the definitions, found in jurisprudence. From all of the definitions
we conclude that it is much easier to perceive and realize the existence and sources of the
police power than to exactly mark its boundaries, or prescribe limits to its exercise by the
legislative department of the government.

The most recent definition which has been called to our attention is that found in the case of
Adkins vs.Children's Hospital of the District of Columbia (261 U. S., 525). In that case the
controversy arose in this way: A children's hospital employed a number of women at various
rates of wages, which were entirely satisfactory to both the hospital and the employees. A
hotel company employed a woman as elevator operator at P35 per month and two meals a
day under healthy and satisfactory conditions, and she did not risk to lose her position as she
could not earn so much anywhere else. Her wages were less than the minimum fixed by a
board created under a law for the purpose of fixing a minimum wage for women and children,
with a penalty providing a punishment for a failure or refusal to pay the minimum wage fixed.
The wage paid by the hotel company of P35 per month and two meals a day was less than
the minimum wage fixed by said board. By reason of the order of said board, the hotel
company, was about to discharge her, as it was unwilling to pay her more and could not give
her employment at that salary without risking the penalty of a fine and imprisonment under the
law. She brought action to enjoin the hotel company from discharging her upon the ground
that the enforcement of the "Minimum Wage Act" would deprive her of her employment and
wages without due process of law, and that she could not get as good a position anywhere
else. The constitutionality of the Act was squarely presented to the Supreme Court of the
United States for decision.

The Supreme Court of the United States held that said Act was void on the ground that the right
to contract about one's own affairs was a part of the liberty of the individual under the
constitution, and that while there was no such thing as absolute freedom of contract, and it
was necessary subject to a great variety of restraints, yet none of the exceptional
circumstances, which at times justify a limitation upon one's right to contract for his own
services, applied in the particular case.

In the course of the decision in that case (Adkins vs. Children's Hospital of the District of
Columbia, 261 U. S., 525), Mr. Justice Sutherland, after a statement of the fact and making
reference to the particular law, said:

The statute now under consideration is attacked upon the ground that it authorizes an
unconstitutional interference with the freedom of contract including within the
guarantees of the due process clause of the 5th Amendment. That the right to contract
about one's affairs is a part of the liberty of the individual protected by this clause is
settled by the decision of this court, and is no longer open to question. Within this
liberty are contracts of employment of labor. In making such contracts, generally
speaking, the parties have an equal right to obtain from each other the best terms they
can as the result of private bargaining. (Allgeyer vs. Louisiana, 165 U. S., 578; 591;
Adair vs. United States, 208 U. S., 161; Muller vs. Oregon, 208 U. S., 412, 421.)

xxx xxx xxx

The law takes account of the necessities of only one party to the contract. It ignores
the necessities of the employer by compelling him to pay not less than a certain sum,
not only whether the employee is capable of earning it, but irrespective of the ability of
 his business to sustain the burden, generously leaving him, of course, the privilege of
abandoning his business as an alternative for going on at a loss. Within the limits of
the minimum sum, he is precluded, under penalty of fine and imprisonment, from
adjusting compensation to the differing merits of his employees. It compels him to pay
at least the sum fixed in any event, because the employee needs it, but requires no
service of equivalent value from the employee. It (the law) therefore undertakes to
solve but one-half of the problem. The other half is the establishment of a
corresponding standard of efficiency; and this forms no part of the policy of the
legislation, although in practice the former half without the latter must lead to ultimate
failure, in accordance with the inexorable law that no one can continue indefinitely to
take out more than he puts in without ultimately exhausting the supply. The law . . .
takes no account of periods of distress and business depression, or crippling losses,
which may leave the employer himself without adequate means of livelihood. To the
extent that the sum fixed exceeds the fair value of the services rendered, it amounts
to a compulsory exaction from the employer for the support of a partially indigent
person, for whose condition there rests upon him no peculiar responsibility, and
therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to
anybody, belongs to society as a whole.

The failure of this state which, perhaps more than any other, puts upon it the stamp of
invalidity is that it exacts from the employer an arbitrary payment for a purpose and
upon a basis having no casual connection with his business, or the contract, or the
work the employee engages to do. The declared basis, as already pointed out, is not
the value of the service rendered, but the extraneous circumstances that the employee
needs to get a prescribed sum of money to insure her subsistence, health and morals.
. . . The necessities of the employee are alone considered, and these arise outside of
the employment, are the same when there is no employment, and as great in one
occupation as in another. . . . In principle, there can be no difference between the case
of selling labor and the case of selling goods. If one goes to the butcher, the baker, or
grocer to buy food, he is morally entitled to obtain the worth of his money, but he is not
entitle to more. If what he gets is worth what he pays, he is not justified in demanding
more simply because he needs more; and the shopkeeper, having dealt fairly and
honestly in that transaction, is not concerned in any peculiar sense with the question
of his customer's necessities. Should a statute undertake to vest in a commission
power to determine the quantity of food necessary for individual support, and require
the shopkeeper, if he sell to the individual at all, to furnish that quantity at not more
than a fixed maximum, it would undoubtedly fall before the constitutional test. The
fallacy of any argument in support of the validity of such a statute would be quickly
exposed. The argument in support of that now being considered is equally fallacious,
though the weakness of it may not be so plain. . . .

It has been said that the particular statute before us is required in the interest of social justice
for whose end freedom of contract may lawfully be subjected to restraint. The liberty of the
individual to do as he pleases, even in innocent matters, is not absolute. That liberty must
frequently yield to the common good, and the line beyond which the power of interference may
not be pressed is neither definite nor unalterable, may be made to move, within limits not well
defined, with changing needs and circumstances.

The late Mr. Justice Harlan, in the case of Adair vs. United States (208 U. S., 161, 174), said
that the right of a person to sell his labor upon such terms as he deems proper is, in its essence,
the same as the right of the purchaser of labor to prescribe the conditions upon which he will
accept such labor from the person offering to sell. In all such particulars the employer and the
employee have equality of right, and any legislation that disturbs that equality is an arbitrary
interference with the liberty of contract, which no government can legally justify in a free land,
under a constitution which provides that no person shall be deprived of his liberty without due
process of law.

Mr. Justice Pitney, in the case of Coppage vs. Kansas (235 U. S., 1, 14), speaking for the
Supreme Court of the United States, said: ". . . Included in the right of personal liberty and the
right of private property — partaking of the nature of each — is the right to make contracts for
the acquisition of property. Chief among such contracts is that of personal employment, by
which labor and other services are exchange for money or other forms of property. If this right
be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the
long established constitutional sense. The right is as essential to the laborer as to the capitalist,
to the poor as to the rich; for the vast majority of persons have no other honest way to begin
to acquire property, save by working for money."

The right to liberty includes the right to enter into contracts and to terminate contracts. In the
case of Gillespie vs. People (118 Ill., 176, 183-185) it was held that a statute making it unlawful
to discharge an employee because of his connection with any lawful labor organization, and
providing a penalty therefor, is void, since the right to terminate a contract, subject to liability
to respond in a civil action for an unwarranted termination, is within the protection of the state
and Federal constitutions which guarantee that no person shall be deprived of life, liberty or
property without due process of law. The court said in part: ". . . One citizen cannot be
compelled to give employment to another citizen, nor can anyone be compelled to be
employed against his will. The Act of 1893, now under consideration, deprives the employer
of the right to terminate his contract with his employee. The right to terminate such a contract
is guaranteed by the organic law of the state. The legislature is forbidden to deprive the
employer or employee of the exercise of that right. The legislature has no authority to
pronounce the performance of an innocent act criminal when the public health, safety, comfort
or welfare is not interfered with. The statute in question says that, if a man exercises his
constitutional right to terminate a contract with his employee, he shall, without a hearing, be
punished as for the commission of a crime.

xxx xxx xxx

Liberty includes not only the right to labor, but to refuse to labor, and, consequently,
the right to contract to labor or for labor, and to terminate such contracts, and to refuse
to make such contracts. The legislature cannot prevent persons, who are sui juris, from
laboring, or from making such contracts as they may see fit to make relative to their
own lawful labor; nor has it any power by penal laws to prevent any person, with or
without cause, from refusing to employ another or to terminate a contract with him,
subject only to the liability to respond in a civil action for an unwarranted refusal to do
that which has been agreed upon. Hence, we are of the opinion that this Act
contravenes those provisions of the state and Federal constitutions, which guarantee
that no person shall be deprived of life, libertyor property without due process of law.

The statute in question is exactly analogous to the "Minimum Wage Act" referred to above. In
section 13 it will be seen that no person, firm, or corporation owning or managing a factory
shop, or place of labor of any description, can make a contract with a woman without incurring
the obligation, whatever the contract of employment might be, unless he also promise to pay
to such woman employed as a laborer, who may become pregnant, her wages for thirty days
before and thirty days after confinement. In other words, said section creates a term or
condition in every contract made by every person, firm, or corporation with any woman who
may, during the course of her employment, become pregnant, and a failure to include in said
contract the terms fixed to a fine and imprisonment. Clearly, therefore, the law has deprived,
every person, firm, or corporation owning or managing a factory, shop or place of labor of any
description within the Philippine Islands, of his right to enter into contracts of employment upon
such terms as he and the employee may agree upon. The law creates a term in every such
contract, without the consent of the parties. Such persons are, therefore, deprived of their
liberty to contract. The constitution of the Philippine Islands guarantees to every citizen
his liberty and one of his liberties is the liberty to contract.

It is believed and confidently asserted that no case can be found, in civilized society and well-
organized governments, where individuals have been deprived of their property, under the
police power of the state, without compensation, except in cases where the property in
question was used for the purpose of violating some legally adopted, or constitutes a nuisance.
Among such cases may be mentioned: Apparatus used in counterfeiting the money of the
state; firearms illegally possessed; opium possessed in violation of law; apparatus used for
gambling in violation of law; buildings and property used for the purpose of violating laws
prohibiting the manufacture and sale of intoxicating liquors; and all cases in which the property
itself has become a nuisance and dangerous and detrimental to the public health, morals and
general welfare of the state. In all of such cases, and in many more which might be cited, the
destruction of the property is permitted in the exercise of the police power of the state. But it
must first be established that such property was used as the instrument for the violation of a
valid existing law. (Mugler vs. Kansas, 123 U. S., 623; Slaughter-House Cases, 16 Wall., [U.
S.], 36; Butchers' Union, etc., Co. vs. Crescent City, etc., Co., 111 U. S., 746 John Stuart Mill
— "On Liberty," 28, 29.)

Without further attempting to define what are the peculiar subjects or limits of the police power,
it may safely be affirmed, that every law for the restraint and punishment of crimes, for the
preservation of the public peace, health, and morals, must come within this category. But the
state, when providing by legislation for the protection of the public health, the public morals, or
the public safety, is subject to and is controlled by the paramount authority of the constitution
of the state, and will not be permitted to violate rights secured or guaranteed by that instrument
or interfere with the execution of the powers and rights guaranteed to the people under their
law — the constitution. (Mugler vs. Kansas, 123 U. S., 623.)

The police power of the state is a growing and expanding power. As civilization develops and
public conscience becomes awakened, the police power may be extended, as has been
demonstrated in the growth of public sentiment with reference to the manufacture and sale of
intoxicating liquors. But that power cannot grow faster than the fundamental law of the state,
nor transcend or violate the express inhibition of the people's law — the constitution. If the
people desire to have the police power extended and applied to conditions and things
prohibited by the organic law, they must first amend that law. 1aw phil.net

It will also be noted from an examination of said section 13, that it takes no account of contracts
for the employment of women by the day nor by the piece. The law is equally applicable to
each case. It will hardly be contended that the person, firm or corporation owning or managing
a factory, shop or place of labor, who employs women by the day or by the piece, could be
compelled under the law to pay for sixty days during which no services were rendered.

It has been decided in a long line of decisions of the Supreme Court of the United States, that
the right to contract about one's affairs is a part of the liberty of the individual, protected by the
"due process of law" clause of the constitution. (Allgeyer vs. Louisiana, 165 U. S., 578, 591;
New York Life Ins. Co. vs. Dodge, 246 U. S., 357, 373, 374; Coppage vs. Kansas, 236 U. S.,
 1, 10, 14; Adair vs. United States, 208 U. S., 161; Lochner vs. New York, 198 U. S.; 45, 49;
Muller vs. Oregon, 208 U. S., 412, 421.)

The rule in this jurisdiction is, that the contracting parties may establish any agreements, terms,
and conditions they may deem advisable, provided they are not contrary to law, morals or
public policy. (Art. 1255, Civil Code.)

For all of the foregoing reasons, we are fully persuaded, under the facts and the law, that the
provisions of section 13, of Act No. 3071 of the Philippine Legislature, are unconstitutional and
void, in that they violate and are contrary to the provisions of the first paragraph of section 3
of the Act of Congress of the United States of August 29, 1916. (Vol. 12, Public Laws, p. 238.)

Therefore, the sentence of the lower court is hereby revoked, the complaint is hereby
dismissed, and the defendant is hereby discharged from the custody of the law, with costs de
oficio. So ordered. Street, Malcolm, Avanceña, Villamor, Ostrand and Romualdez, JJ., concur.

[G.R. No. 61594 September 28, 1990]

PAKISTAN INTERNATIONAL AIRLINES CORPORATION, petitioner,

vs
HON. BLAS F. OPLE, in his capacity as Minister of Labor; HON. VICENTE LEOGARDO, JR., in
his capacity as Deputy Minister; ETHELYNNE B. FARRALES and MARIA MOONYEEN
MAMASIG, respondents.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for petitioner.

Ledesma, Saludo & Associates for private respondents.

FELICIANO, J.:

On 2 December 1978, petitioner Pakistan International Airlines Corporation ("PIA"), a foreign corporation licensed to do business in the
Philippines, executed in Manila two (2) separate contracts of employment, one with private respondent Ethelynne B. Farrales and the other
with private respondent Ma. M.C. Mamasig. 1The contracts, which became effective on 9 January 1979, provided in pertinent portion as follows:

5. DURATION OF EMPLOYMENT AND PENALTY

This agreement is for a period of three (3) years, but can be extended by the mutual
consent of the parties.

xxx xxx xxx

6. TERMINATION

xxx xxx xxx

Notwithstanding anything to contrary as herein provided, PIA reserves the right to

terminate this agreement at any time by giving the EMPLOYEE notice in writing in
advance one month before the intended termination or in lieu thereof, by paying the
EMPLOYEE wages equivalent to one month's salary.
 xxx xxx xxx

10. APPLICABLE LAW:

This agreement shall be construed and governed under and by the laws of Pakistan,
and only the Courts of Karachi, Pakistan shall have the jurisdiction to consider any
matter arising out of or under this agreement.

Respondents then commenced training in Pakistan. After their training period, they began discharging
their job functions as flight attendants, with base station in Manila and flying assignments to different
parts of the Middle East and Europe.

On 2 August 1980, roughly one (1) year and four (4) months prior to the expiration of the contracts of
employment, PIA through Mr. Oscar Benares, counsel for and official of the local branch of PIA, sent
separate letters both dated 1 August 1980 to private respondents Farrales and Mamasig advising both
that their services as flight stewardesses would be terminated "effective 1 September 1980,
conformably to clause 6 (b) of the employment agreement [they had) executed with [PIA]."2

On 9 September 1980, private respondents Farrales and Mamasig jointly instituted a complaint,
docketed as NCR-STF-95151-80, for illegal dismissal and non-payment of company benefits and
bonuses, against PIA with the then Ministry of Labor and Employment ("MOLE"). After several
unfruitful attempts at conciliation, the MOLE hearing officer Atty. Jose M. Pascual ordered the parties
to submit their position papers and evidence supporting their respective positions. The PIA submitted
its position paper, 3 but no evidence, and there claimed that both private respondents were habitual
absentees; that both were in the habit of bringing in from abroad sizeable quantities of "personal
effects"; and that PIA personnel at the Manila International Airport had been discreetly warned by
customs officials to advise private respondents to discontinue that practice. PIA further claimed that
the services of both private respondents were terminated pursuant to the provisions of the employment
contract.

In his Order dated 22 January 1981, Regional Director Francisco L. Estrella ordered the reinstatement
of private respondents with full backwages or, in the alternative, the payment to them of the amounts
equivalent to their salaries for the remainder of the fixed three-year period of their employment
contracts; the payment to private respondent Mamasig of an amount equivalent to the value of a round
trip ticket Manila-USA Manila; and payment of a bonus to each of the private respondents equivalent
to their one-month salary. 4 The Order stated that private respondents had attained the status of
regular employees after they had rendered more than a year of continued service; that the stipulation
limiting the period of the employment contract to three (3) years was null and void as violative of the
provisions of the Labor Code and its implementing rules and regulations on regular and casual
employment; and that the dismissal, having been carried out without the requisite clearance from the
MOLE, was illegal and entitled private respondents to reinstatement with full backwages.

On appeal, in an Order dated 12 August 1982, Hon. Vicente Leogardo, Jr., Deputy Minister, MOLE,
adopted the findings of fact and conclusions of the Regional Director and affirmed the latter's award
save for the portion thereof giving PIA the option, in lieu of reinstatement, "to pay each of the
complainants [private respondents] their salaries corresponding to the unexpired portion of the
contract[s] [of employment] . . .". 5

In the instant Petition for Certiorari, petitioner PIA assails the award of the Regional Director and the
Order of the Deputy Minister as having been rendered without jurisdiction; for having been rendered
without support in the evidence of record since, allegedly, no hearing was conducted by the hearing
officer, Atty. Jose M. Pascual; and for having been issued in disregard and in violation of petitioner's
rights under the employment contracts with private respondents.

1. Petitioner's first contention is that the Regional Director, MOLE, had no jurisdiction over the subject
matter of the complaint initiated by private respondents for illegal dismissal, jurisdiction over the same
being lodged in the Arbitration Branch of the National Labor Relations Commission ("NLRC") It
appears to us beyond dispute, however, that both at the time the complaint was initiated in September
1980 and at the time the Orders assailed were rendered on January 1981 (by Regional Director
Francisco L. Estrella) and August 1982 (by Deputy Minister Vicente Leogardo, Jr.), the Regional
Director had jurisdiction over termination cases.

Art. 278 of the Labor Code, as it then existed, forbade the termination of the services of employees
with at least one (1) year of service without prior clearance from the Department of Labor and
Employment:

Art. 278. Miscellaneous Provisions — . . .

(b) With or without a collective agreement, no employer may shut down his
establishment or dismiss or terminate the employment of employees with at least one
year of service during the last two (2) years, whether such service is continuous or
broken, without prior written authority issued in accordance with such rules and
regulations as the Secretary may promulgate . . . (emphasis supplied)

Rule XIV, Book No. 5 of the Rules and Regulations Implementing the Labor Code, made clear
that in case of a termination without the necessary clearance, the Regional Director was
authorized to order the reinstatement of the employee concerned and the payment of
backwages; necessarily, therefore, the Regional Director must have been given jurisdiction
over such termination cases:

Sec. 2. Shutdown or dismissal without clearance. — Any shutdown or dismissal

without prior clearance shall be conclusively presumed to be termination of
employment without a just cause. The Regional Director shall, in such case order the
immediate reinstatement of the employee and the payment of his wages from the time
of the shutdown or dismissal until the time of reinstatement. (emphasis supplied)

Policy Instruction No. 14 issued by the Secretary of Labor, dated 23 April 1976, was similarly
very explicit about the jurisdiction of the Regional Director over termination of employment
cases:

Under PD 850, termination cases — with or without CBA — are now placed under the
original jurisdiction of the Regional Director. Preventive suspension cases, now made
cognizable for the first time, are also placed under the Regional Director. Before PD
850, termination cases where there was a CBA were under the jurisdiction of the
grievance machinery and voluntary arbitration, while termination cases where there
was no CBA were under the jurisdiction of the Conciliation Section.

In more details, the major innovations introduced by PD 850 and its implementing rules
and regulations with respect to termination and preventive suspension cases are:

1. The Regional Director is now required to rule on every application for clearance,
whether there is opposition or not, within ten days from receipt thereof.
 xxx xxx xxx

(Emphasis supplied)

2. The second contention of petitioner PIA is that, even if the Regional Director had jurisdiction, still
his order was null and void because it had been issued in violation of petitioner's right to procedural
due process .6 This claim, however, cannot be given serious consideration. Petitioner was ordered by
the Regional Director to submit not only its position paper but also such evidence in its favor as it might
have. Petitioner opted to rely solely upon its position paper; we must assume it had no evidence to
sustain its assertions. Thus, even if no formal or oral hearing was conducted, petitioner had ample
opportunity to explain its side. Moreover, petitioner PIA was able to appeal his case to the Ministry of
Labor and Employment. 7

There is another reason why petitioner's claim of denial of due process must be rejected. At the time
the complaint was filed by private respondents on 21 September 1980 and at the time the Regional
Director issued his questioned order on 22 January 1981, applicable regulation, as noted above,
specified that a "dismissal without prior clearance shall be conclusively presumed to be termination of
employment without a cause", and the Regional Director was required in such case to" order the
immediate reinstatement of the employee and the payment of his wages from the time of the shutdown
or dismiss until . . . reinstatement." In other words, under the then applicable rule, the Regional Director
did not even have to require submission of position papers by the parties in view of the conclusive (juris
et de jure) character of the presumption created by such applicable law and regulation. In Cebu
Institute of Technology v. Minister of Labor and Employment, 8 the Court pointed out that "under Rule
14, Section 2, of the Implementing Rules and Regulations, the termination of [an employee] which was
without previous clearance from the Ministry of Labor is conclusively presumed to be without [just]
cause . . . [a presumption which] cannot be overturned by any contrary proof however strong."

3. In its third contention, petitioner PIA invokes paragraphs 5 and 6 of its contract of employment with
private respondents Farrales and Mamasig, arguing that its relationship with them was governed by
the provisions of its contract rather than by the general provisions of the Labor Code. 9

Paragraph 5 of that contract set a term of three (3) years for that relationship, extendible by agreement
between the parties; while paragraph 6 provided that, notwithstanding any other provision in the
Contract, PIA had the right to terminate the employment agreement at any time by giving one-month's
notice to the employee or, in lieu of such notice, one-months salary.

A contract freely entered into should, of course, be respected, as PIA argues, since a contract is the
law between the parties. 10 The principle of party autonomy in contracts is not, however, an absolute
principle. The rule in Article 1306, of our Civil Code is that the contracting parties may establish such
stipulations as they may deem convenient, "provided they are not contrary to law, morals, good
customs, public order or public policy." Thus, counter-balancing the principle of autonomy of
contracting parties is the equally general rule that provisions of applicable law, especially provisions
relating to matters affected with public policy, are deemed written into the contract. 11 Put a little
differently, the governing principle is that parties may not contract away applicable provisions of law
especially peremptory provisions dealing with matters heavily impressed with public interest. The law
relating to labor and employment is clearly such an area and parties are not at liberty to insulate
themselves and their relationships from the impact of labor laws and regulations by simply contracting
with each other. It is thus necessary to appraise the contractual provisions invoked by petitioner PIA
in terms of their consistency with applicable Philippine law and regulations.

As noted earlier, both the Labor Arbiter and the Deputy Minister, MOLE, in effect held that paragraph
5 of that employment contract was inconsistent with Articles 280 and 281 of the Labor Code as they
existed at the time the contract of employment was entered into, and hence refused to give effect to
said paragraph 5. These Articles read as follows:

Art. 280. Security of Tenure. — In cases of regular employment, the employer shall
not terminate the services of an employee except for a just cause or when authorized
by this Title An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and to his backwages computed from the
time his compensation was withheld from him up to the time his reinstatement.

Art. 281. Regular and Casual Employment. The provisions of written agreement to the
contrary notwithstanding and regardless of the oral agreements of the parties, an
employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or
trade of the employer, except where the employment has been fixed for a specific
project or undertaking the completion or termination of which has been determined at
the time of the engagement of the employee or where the work or services to be
performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding

paragraph: provided, that, any employee who has rendered at least one year of
service, whether such service is continuous or broken, shall be considered as regular
employee with respect to the activity in which he is employed and his employment shall
continue while such actually exists. (Emphasis supplied)

In Brent School, Inc., et al. v. Ronaldo Zamora, etc., et al., 12 the Court had occasion to examine in
detail the question of whether employment for a fixed term has been outlawed under the above quoted
provisions of the Labor Code. After an extensive examination of the history and development of
Articles 280 and 281, the Court reached the conclusion that a contract providing for employment with
a fixed period was not necessarily unlawful:

There can of course be no quarrel with the proposition that where from the
circumstances it is apparent that periods have been imposed to preclude acquisition
of tenurial security by the employee, they should be struck down or disregarded as
contrary to public policy, morals, etc. But where no such intent to circumvent the law
is shown, or stated otherwise, where the reason for the law does not exist e.g. where
it is indeed the employee himself who insists upon a period or where the nature of the
engagement is such that, without being seasonal or for a specific project, a definite
date of termination is a sine qua non would an agreement fixing a period be essentially
evil or illicit, therefore anathema Would such an agreement come within the scope of
Article 280 which admittedly was enacted "to prevent the circumvention of the right of
the employee to be secured in . . . (his) employment?"

As it is evident from even only the three examples already given that Article 280 of the
Labor Code, under a narrow and literal interpretation, not only fails to exhaust the
gamut of employment contracts to which the lack of a fixed period would be an
anomaly, but would also appear to restrict, without reasonable distinctions, the right of
an employee to freely stipulate with his employer the duration of his engagement, it
logically follows that such a literal interpretation should be eschewed or avoided. The
law must be given reasonable interpretation, to preclude absurdity in its application.
Outlawing the whole concept of term employment and subverting to boot the principle
of freedom of contract to remedy the evil of employers" using it as a means to prevent
 their employees from obtaining security of tenure is like cutting off the nose to spite
the face or, more relevantly, curing a headache by lopping off the head.

xxx xxx xxx

Accordingly, and since the entire purpose behind the development of legislation
culminating in the present Article 280 of the Labor Code clearly appears to have been,
as already observed, to prevent circumvention of the employee's right to be secure in
his tenure, the clause in said article indiscriminately and completely ruling out all
written or oral agreements conflicting with the concept of regular employment as
defined therein should be construed to refer to the substantive evil that the Code itself
has singled out: agreements entered into precisely to circumvent security of tenure. It
should have no application to instances where a fixed period of employment was
agreed upon knowingly and voluntarily by the parties, without any force, duress or
improper pressure being brought to bear upon the employee and absent any other
circumstances vitiating his consent, or where it satisfactorily appears that the employer
and employee dealt with each other on more or less equal terms with no moral
dominance whatever being exercised by the former over the latter. Unless thus limited
in its purview, the law would be made to apply to purposes other than those explicitly
stated by its framers; it thus becomes pointless and arbitrary, unjust in its effects and
apt to lead to absurd and unintended consequences. (emphasis supplied)

It is apparent from Brent School that the critical consideration is the presence or absence of a
substantial indication that the period specified in an employment agreement was designed to
circumvent the security of tenure of regular employees which is provided for in Articles 280
and 281 of the Labor Code. This indication must ordinarily rest upon some aspect of the
agreement other than the mere specification of a fixed term of the ernployment agreement, or
upon evidence aliunde of the intent to evade.

Examining the provisions of paragraphs 5 and 6 of the employment agreement between petitioner PIA
and private respondents, we consider that those provisions must be read together and when so read,
the fixed period of three (3) years specified in paragraph 5 will be seen to have been effectively
neutralized by the provisions of paragraph 6 of that agreement. Paragraph 6 in effect took back from
the employee the fixed three (3)-year period ostensibly granted by paragraph 5 by rendering such
period in effect a facultative one at the option of the employer PIA. For petitioner PIA claims to be
authorized to shorten that term, at any time and for any cause satisfactory to itself, to a one-month
period, or even less by simply paying the employee a month's salary. Because the net effect of
paragraphs 5 and 6 of the agreement here involved is to render the employment of private respondents
Farrales and Mamasig basically employment at the pleasure of petitioner PIA, the Court considers that
paragraphs 5 and 6 were intended to prevent any security of tenure from accruing in favor of private
respondents even during the limited period of three (3) years,13 and thus to escape completely the
thrust of Articles 280 and 281 of the Labor Code.

Petitioner PIA cannot take refuge in paragraph 10 of its employment agreement which specifies, firstly,
the law of Pakistan as the applicable law of the agreement and, secondly, lays the venue for settlement
of any dispute arising out of or in connection with the agreement "only [in] courts of Karachi Pakistan".
The first clause of paragraph 10 cannot be invoked to prevent the application of Philippine labor laws
and regulations to the subject matter of this case, i.e., the employer-employee relationship between
petitioner PIA and private respondents. We have already pointed out that the relationship is much
affected with public interest and that the otherwise applicable Philippine laws and regulations cannot
be rendered illusory by the parties agreeing upon some other law to govern their relationship. Neither
may petitioner invoke the second clause of paragraph 10, specifying the Karachi courts as the sole
venue for the settlement of dispute; between the contracting parties. Even a cursory scrutiny of the
relevant circumstances of this case will show the multiple and substantive contacts between Philippine
law and Philippine courts, on the one hand, and the relationship between the parties, upon the other:
the contract was not only executed in the Philippines, it was also performed here, at least partially;
private respondents are Philippine citizens and respondents, while petitioner, although a foreign
corporation, is licensed to do business (and actually doing business) and hence resident in the
Philippines; lastly, private respondents were based in the Philippines in between their assigned flights
to the Middle East and Europe. All the above contacts point to the Philippine courts and administrative
agencies as a proper forum for the resolution of contractual disputes between the parties. Under these
circumstances, paragraph 10 of the employment agreement cannot be given effect so as to oust
Philippine agencies and courts of the jurisdiction vested upon them by Philippine law. Finally, and in
any event, the petitioner PIA did not undertake to plead and prove the contents of Pakistan law on the
matter; it must therefore be presumed that the applicable provisions of the law of Pakistan are the
same as the applicable provisions of Philippine law.14

We conclude that private respondents Farrales and Mamasig were illegally dismissed and that public
respondent Deputy Minister, MOLE, had not committed any grave abuse of discretion nor any act
without or in excess of jurisdiction in ordering their reinstatement with backwages. Private respondents
are entitled to three (3) years backwages without qualification or deduction. Should their reinstatement
to their former or other substantially equivalent positions not be feasible in view of the length of time
which has gone by since their services were unlawfully terminated, petitioner should be required to
pay separation pay to private respondents amounting to one (1) month's salary for every year of
service rendered by them, including the three (3) years service putatively rendered.

ACCORDINGLY, the Petition for certiorari is hereby DISMISSED for lack of merit, and the Order dated
12 August 1982 of public respondent is hereby AFFIRMED, except that (1) private respondents are
entitled to three (3) years backwages, without deduction or qualification; and (2) should reinstatement
of private respondents to their former positions or to substantially equivalent positions not be feasible,
then petitioner shall, in lieu thereof, pay to private respondents separation pay amounting to one (1)-
month's salary for every year of service actually rendered by them and for the three (3) years putative
service by private respondents. The Temporary Restraining Order issued on 13 September 1982 is
hereby LIFTED. Costs against petitioner.

SO ORDERED.

Fernan (C.J., Chairman), Gutierrez, Jr., Bidin and Cortés, JJ., concur.

Footnotes

1 Rollo, pp. 12 and 17.

2 Id., p. 22.

3 Id., pp. 36-41.

4 Id., p. 43.

5 Id., p. 64.
 6 Rollo, p. 6.

7 See Llora Motors, Inc., et al. v. Hon. Franklin Drilon, et al., G.R. No. 82895, 7
November 1989.

8 113 SCRA 257 (1982).

9 Rollo, p. 8.

10 Henson v. Intermediate Appellate Court, 148 SCRA 11 (1987).

11 Commissioner of Internal Revenue v. United Lines Co., 5 SCRA 175 (1962).

12 G.R. No. L-48494, promulgated 5 February 1990.

13 See Biboso v. Victorias Milling Co., Inc., 76 SCRA 250 (1977).

14 Miciano v. Brimo, 50 Phil. 867 (1924); Collector of Internal Revenue v. Fisher, 110
Phil. 686 (1961).

[G.R. Nos. 84132-33 : December 10, 1990.]

192 SCRA 257

NATIONAL DEVELOPMENT COMPANY AND NEW AGRIX, INC., Petitioners, vs.

PHILIPPINE VETERANS BANK, THE EX-OFFICIO SHERIFF and GODOFREDO QUILING,
in his capacity as Deputy Sheriff of Calamba, Laguna, Respondents.

DECISION

CRUZ, J.:

This case involves the constitutionality of a presidential decree which, like all other issuances
of President Marcos during his regime, was at that time regarded as sacrosanct. It is only now,
in a freer atmosphere, that his acts are being tested by the touchstone of the fundamental law
that even then was supposed to limit presidential action.: rd

The particular enactment in question is Pres. Decree No. 1717, which ordered the
rehabilitation of the Agrix Group of Companies to be administered mainly by the National
Development Company. The law outlined the procedure for filing claims against the Agrix
companies and created a Claims Committee to process these claims. Especially relevant to
this case, and noted at the outset, is Sec. 4(1) thereof providing that "all mortgages and other
liens presently attaching to any of the assets of the dissolved corporations are hereby
extinguished."
Earlier, the Agrix Marketing, Inc. (AGRIX) had executed in favor of private respondent
Philippine Veterans Bank a real estate mortgage dated July 7, 1978, over three (3) parcels of
land situated in Los Baños, Laguna. During the existence of the mortgage, AGRIX went
bankrupt. It was for the expressed purpose of salvaging this and the other Agrix companies
that the aforementioned decree was issued by President Marcos.

Pursuant thereto, the private respondent filed a claim with the AGRIX Claims Committee for
the payment of its loan credit. In the meantime, the New Agrix, Inc. and the National
Development Company, petitioners herein, invoking Sec. 4 (1) of the decree, filed a petition
with the Regional Trial Court of Calamba, Laguna, for the cancellation of the mortgage lien in
favor of the private respondent. For its part, the private respondent took steps to extrajudicially
foreclose the mortgage, prompting the petitioners to file a second case with the same court to
stop the foreclosure. The two cases were consolidated.

After the submission by the parties of their respective pleadings, the trial court rendered the
impugned decision. Judge Francisco Ma. Guerrero annulled not only the challenged provision,
viz., Sec. 4 (1), but the entire Pres. Decree No. 1717 on the grounds that: (1) the presidential
exercise of legislative power was a violation of the principle of separation of powers; (2) the
law impaired the obligation of contracts; and (3) the decree violated the equal protection
clause. The motion for reconsideration of this decision having been denied, the present petition
was filed.: rd

The petition was originally assigned to the Third Division of this Court but because of the
constitutional questions involved it was transferred to the Court en banc. On August 30, 1988,
the Court granted the petitioner's prayer for a temporary restraining order and instructed the
respondents to cease and desist from conducting a public auction sale of the lands in question.
After the Solicitor General and the private respondent had filed their comments and the
petitioners their reply, the Court gave due course to the petition and ordered the parties to file
simultaneous memoranda. Upon compliance by the parties, the case was deemed submitted.

The petitioners contend that the private respondent is now estopped from contesting the
validity of the decree. In support of this contention, it cites the recent case of Mendoza v. Agrix
Marketing, Inc., 1 where the constitutionality of Pres. Decree No. 1717 was also raised but not
resolved. The Court, after noting that the petitioners had already filed their claims with the
AGRIX Claims Committee created by the decree, had simply dismissed the petition on the
ground of estoppel.

The petitioners stress that in the case at bar the private respondent also invoked the provisions
of Pres. Decree No. 1717 by filing a claim with the AGRIX Claims Committee. Failing to get
results, it sought to foreclose the real estate mortgage executed by AGRIX in its favor, which
had been extinguished by the decree. It was only when the petitioners challenged the
foreclosure on the basis of Sec. 4 (1) of the decree, that the private respondent attacked the
validity of the provision. At that stage, however, consistent with Mendoza, the private
respondent was already estopped from questioning the constitutionality of the decree.

The Court does not agree that the principle of estoppel is applicable.

It is not denied that the private respondent did file a claim with the AGRIX Claims Committee
pursuant to this decree. It must be noted, however, that this was done in 1980, when President
Marcos was the absolute ruler of this country and his decrees were the absolute law. Any
judicial challenge to them would have been futile, not to say foolhardy. The private respondent,
no less than the rest of the nation, was aware of that reality and knew it had no choice under
the circumstances but to conform.: nad

It is true that there were a few venturesome souls who dared to question the dictator's
decisions before the courts of justice then. The record will show, however, that not a single act
or issuance of President Marcos was ever declared unconstitutional, not even by the highest
court, as long as he was in power. To rule now that the private respondent is estopped for
having abided with the decree instead of boldly assailing it is to close our eyes to a cynical fact
of life during that repressive time.

This case must be distinguished from Mendoza, where the petitioners, after filing their claims
with the AGRIX Claims Committee, received in settlement thereof shares of stock valued at
P40,000.00 without protest or reservation. The herein private respondent has not been paid a
single centavo on its claim, which was kept pending for more than seven years for alleged lack
of supporting papers. Significantly, the validity of that claim was not questioned by the
petitioner when it sought to restrain the extrajudicial foreclosure of the mortgage by the private
respondent. The petitioner limited itself to the argument that the private respondent was
estopped from questioning the decree because of its earlier compliance with its provisions.

Independently of these observations, there is the consideration that an affront to the

Constitution cannot be allowed to continue existing simply because of procedural inhibitions
that exalt form over substance.

The Court is especially disturbed by Section 4(1) of the decree, quoted above, extinguishing
all mortgages and other liens attaching to the assets of AGRIX. It also notes, with equal
concern, the restriction in Subsection (ii) thereof that all "unsecured obligations shall not bear
interest" and in Subsection (iii) that "all accrued interests, penalties or charges as of date
hereof pertaining to the obligations, whether secured or unsecured, shall not be recognized."

These provisions must be read with the Bill of Rights, where it is clearly provided in Section 1
that "no person shall be deprived of life, liberty or property without due course of law nor shall
any person be denied the equal protection of the law" and in Section 10 that "no law impairing
the obligation of contracts shall be passed."

In defending the decree, the petitioners argue that property rights, like all rights, are subject to
regulation under the police power for the promotion of the common welfare. The contention is
that this inherent power of the state may be exercised at any time for this purpose so long as
the taking of the property right, even if based on contract, is done with due process of law.

This argument is an over-simplification of the problem before us. The police power is not a
panacea for all constitutional maladies. Neither does its mere invocation conjure an instant
and automatic justification for every act of the government depriving a person of his life, liberty
or property.

A legislative act based on the police power requires the concurrence of a lawful subject and a
lawful method. In more familiar words, a) the interests of the public generally, as distinguished
from those of a particular class, should justify the interference of the state; and b) the means
employed are reasonably necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals. 2

Applying these criteria to the case at bar, the Court finds first of all that the interests of the
public are not sufficiently involved to warrant the interference of the government with the
private contracts of AGRIX. The decree speaks vaguely of the "public, particularly the small
investors," who would be prejudiced if the corporation were not to be assisted. However, the
record does not state how many there are of such investors, and who they are, and why they
are being preferred to the private respondent and other creditors of AGRIX with vested
property rights.:-cralaw

The public interest supposedly involved is not identified or explained. It has not been shown
that by the creation of the New Agrix, Inc. and the extinction of the property rights of the
creditors of AGRIX, the interests of the public as a whole, as distinguished from those of a
particular class, would be promoted or protected. The indispensable link to the welfare of the
greater number has not been established. On the contrary, it would appear that the decree
was issued only to favor a special group of investors who, for reasons not given, have been
preferred to the legitimate creditors of AGRIX.

Assuming there is a valid public interest involved, the Court still finds that the means employed
to rehabilitate AGRIX fall far short of the requirement that they shall not be unduly oppressive.
The oppressiveness is patent on the face of the decree. The right to property in all mortgages,
liens, interests, penalties and charges owing to the creditors of AGRIX is arbitrarily destroyed.
No consideration is paid for the extinction of the mortgage rights. The accrued interests and
other charges are simply rejected by the decree. The right to property is dissolved by legislative
fiat without regard to the private interest violated and, worse, in favor of another private
interest.

A mortgage lien is a property right derived from contract and so comes under the protection of
the Bill of Rights. So do interests on loans, as well as penalties and charges, which are also
vested rights once they accrue. Private property cannot simply be taken by law from one
person and given to another without compensation and any known public purpose. This is
plain arbitrariness and is not permitted under the Constitution.

And not only is there arbitrary taking, there is discrimination as well. In extinguishing the
mortgage and other liens, the decree lumps the secured creditors with the unsecured creditors
and places them on the same level in the prosecution of their respective claims. In this respect,
all of them are considered unsecured creditors. The only concession given to the secured
creditors is that their loans are allowed to earn interest from the date of the decree, but that
still does not justify the cancellation of the interests earned before that date. Such interests,
whether due to the secured or the unsecured creditors, are all extinguished by the decree.
Even assuming such cancellation to be valid, we still cannot see why all kinds of creditors,
regardless of security, are treated alike.

Under the equal protection clause, all persons or things similarly situated must be treated alike,
both in the privileges conferred and the obligations imposed. Conversely, all persons or things
differently situated should be treated differently. In the case at bar, persons differently situated
are similarly treated, in disregard of the principle that there should be equality only among
equals.- nad

One may also well wonder why AGRIX was singled out for government help, among other
corporations where the stockholders or investors were also swindled. It is not clear why other
companies entitled to similar concern were not similarly treated. And surely, the stockholders
of the private respondent, whose mortgage lien had been cancelled and legitimate claims to
accrued interests rejected, were no less deserving of protection, which they did not get. The
decree operated, to use the words of a celebrated case, 3 "with an evil eye and an uneven
hand."
On top of all this, New Agrix, Inc. was created by special decree notwithstanding the provision
of Article XIV, Section 4 of the 1973 Constitution, then in force, that:

SEC. 4. The Batasang Pambansa shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such corporations are owned or
controlled by the Government or any subdivision or instrumentality thereof. 4

The new corporation is neither owned nor controlled by the government. The National
Development Corporation was merely required to extend a loan of not more than
P10,000,000.00 to New Agrix, Inc. Pending payment thereof, NDC would undertake the
management of the corporation, but with the obligation of making periodic reports to the Agrix
board of directors. After payment of the loan, the said board can then appoint its own
management. The stocks of the new corporation are to be issued to the old investors and
stockholders of AGRIX upon proof of their claims against the abolished corporation. They shall
then be the owners of the new corporation. New Agrix, Inc. is entirely private and so should
have been organized under the Corporation Law in accordance with the above-cited
constitutional provision.

The Court also feels that the decree impairs the obligation of the contract between AGRIX and
the private respondent without justification. While it is true that the police power is superior to
the impairment clause, the principle will apply only where the contract is so related to the public
welfare that it will be considered congenitally susceptible to change by the legislature in the
interest of the greater number. 5 Most present-day contracts are of that nature. But as already
observed, the contracts of loan and mortgage executed by AGRIX are purely private
transactions and have not been shown to be affected with public interest. There was therefore
no warrant to amend their provisions and deprive the private respondent of its vested property
rights.

It is worth noting that only recently in the case of the Development Bank of the Philippines v.
NLRC, 6 we sustained the preference in payment of a mortgage creditor as against the
argument that the claims of laborers should take precedence over all other claims, including
those of the government. In arriving at this ruling, the Court recognized the mortgage lien as a
property right protected by the due process and contract clauses notwithstanding the argument
that the amendment in Section 110 of the Labor Code was a proper exercise of the police
power.: nad

The Court reaffirms and applies that ruling in the case at bar.

Our finding, in sum, is that Pres. Decree No. 1717 is an invalid exercise of the police power,
not being in conformity with the traditional requirements of a lawful subject and a lawful
method. The extinction of the mortgage and other liens and of the interest and other charges
pertaining to the legitimate creditors of AGRIX constitutes taking without due process of law,
and this is compounded by the reduction of the secured creditors to the category of unsecured
creditors in violation of the equal protection clause. Moreover, the new corporation, being
neither owned nor controlled by the Government, should have been created only by general
and not special law. And insofar as the decree also interferes with purely private agreements
without any demonstrated connection with the public interest, there is likewise an impairment
of the obligation of the contract.
With the above pronouncements, we feel there is no more need to rule on the authority of
President Marcos to promulgate Pres. Decree No. 1717 under Amendment No. 6 of the 1973
Constitution. Even if he had such authority, the decree must fall just the same because of its
violation of the Bill of Rights.

WHEREFORE, the petition is DISMISSED. Pres. Decree No. 1717 is declared

UNCONSTITUTIONAL. The temporary restraining order dated August 30, 1988, is LIFTED.
Costs against the petitioners.- nad

SO ORDERED.

Fernan (C.J.), Narvasa, Gutierrez, Jr., Paras, Gancayco Padilla, Bidin, Sarmiento, Griño-
Aquino, Medialdea and Regalado, JJ., concur.

Melencio-Herrera, J., In the result. In Dumlao v. COMELEC, 95 SCRA 392 (1980), a portion
of the second paragraph of section 4 of Batas Pambansa Blg. 52 was declared null and void
for being unconstitutional.

Feliciano, J., is on leave.

Endnotes

1. G.R. No. 62259, April 19, 1989.

2. U.S. v. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Case v. Board of Health,
24 Phil. 256; Bautista v. Juinio, 127 SCRA 329; Ynot v. IAC, 148 SCRA 659.

3. Yick Wo v. Hopkins, 118 U.S. 356.

4. Reworded in Art. XII, Sec. 16, 1987 Constitution.

5. Stone v. Mississippi, 101 U.S. 814.

6. G.R. Nos. 82763-64, March 19, 1990.

[G.R. No. L-44143 August 31, 1988]

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
EUSEBIO NAZARIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Teofilo Ragodon for accused-appellant.

SARMIENTO, J.:

The petitioner was charged with violation of certain municipal ordinances of the municipal council of Pagbilao, in Quezon province. By way of
confession and avoidance, the petitioner would admit having committed the acts charged but would claim that the ordinances are
unconstitutional, or, assuming their constitutionality, that they do not apply to him in any event.

The facts are not disputed:

This defendant is charged of the crime of Violation of Municipal Ordinance in an
information filed by the provincial Fiscal, dated October 9, 1968, as follows:

That in the years 1964, 1965 and 1966, in the Municipality of Pagbilao,
Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being then the owner
and operator of a fishpond situated in the barrio of Pinagbayanan, of
said municipality, did then and there willfully, unlawfully and feloniously
refuse and fail to pay the municipal taxes in the total amount of THREE
HUNDRED SIXTY TWO PESOS AND SIXTY TWO CENTAVOS
(P362.62), required of him as fishpond operator as provided for under
Ordinance No. 4, series of 1955, as amended, inspite of repeated
demands made upon him by the Municipal Treasurer of Pagbilao,
Quezon, to pay the same.

Contrary to law.

For the prosecution the following witnesses testified in substance as follows;

MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez, Quezon
—

In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused as

I worked in his fishpond in 1962 to 1964. The fishpond of Nazario is at Pinagbayanan,
Pagbilao, Quezon. I worked in the clearing of the fishpond, the construction of the
dikes and the catching of fish.

On cross-examination, this witness declared:

I worked with the accused up to March 1964.

NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of

Pinagbayanan, Pagbilao, Quezon —

I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know the
accused since 1959 when he opened a fishpond at Pinagbayanan, Pagbilao, Quezon.
He still operates the fishpond up to the present and I know this fact as I am the barrio
captain of Pinagbayanan.

On cross-examination, this witness declared:

I came to know the accused when he first operated his fishpond since 1959.

On re-direct examination, this witness declared:

I was present during the catching of fish in 1967 and the accused was there.

On re-cross examination, this witness declared:

I do not remember the month in 1962 when the accused caught fish.
RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon,
married —

As Municipal Treasurer I am in charge of tax collection. I know the accused even before
I was Municipal Treasurer of Pagbilao. I have written the accused a letter asking him
to pay his taxes (Exhibit B). Said letter was received by the accused as per registry
return receipt, Exhibit B-1. The letter demanded for payment of P362.00, more or less,
by way of taxes which he did not pay up to the present. The former Treasurer, Ceferino
Caparros, also wrote a letter of demand to the accused (Exhibit C). On June 28, 1967,
I sent a letter to the Fishery Commission (Exhibit D), requesting information if accused
paid taxes with that office. The Commission sent me a certificate (Exhibits D-1, D-2 &
D-3). The accused had a fishpond lease agreement. The taxes unpaid were for the
years 1964, 1965 and 1966.

On cross-examination, this witness declared:

I have demanded the taxes for 38.10 hectares.

On question of the court, this witness declared:

What I was collecting from the accused is the fee on fishpond operation, not rental.

The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2, C, D,
D-1, D-2, D-3, E, F, F-1 and the same were admitted by the court, except Exhibits D,
D-1, D-2 and D-3 which were not admitted for being immaterial.

For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner
and general manager of the ZIP Manufacturing Enterprises and resident of 4801 Old
Sta. Mesa, Sampaloc, Manila, declared in substance as follows:

I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates at Manila
or at San Juan. In 1964, 1965 and 1966, I was living in Manila and my business is in
Manila and my family lives at Manila. I never resided at Pagbilao, Quezon. I do not
own a house at Pagbilao. I am a lessee of a fishpond located at Pagbilao, Quezon,
and I have a lease agreement to that effect with the Philippine Fisheries Commission
marked as Exhibit 1. In 1964, 1965 and 1966, the contract of lease, Exhibit 1, was still
existing and enforceable. The Ordinances Nos. 4, 15 and 12, series of 1955, 1965 and
1966, were translated into English by the Institute of National Language to better
understand the ordinances. There were exchange of letters between me and the
Municipal Treasurer of Pagbilao regarding the payment of the taxes on my leased
fishpond situated at Pagbilao. There was a letter of demand for the payment of the
taxes by the treasurer (Exhibit 3) which I received by mail at my residence at Manila. I
answered the letter of demand, Exhibit 3, with Exhibit 3-A. I requested an inspection
of my fishpond to determine its condition as it was not then in operation. The Municipal
Treasurer Alvarez went there once in 1967 and he found that it was destroyed by the
typhoon and there were pictures taken marked as Exhibits 4, 4-A, 4-B and 4C. I
received another letter of demand, Exhibit 5, and I answered the same (Exhibit 5-A). I
copied my reference quoted in Exhibit 5-A from Administrative Order No. 6, Exhibit 6.
I received another letter of demand from Tomas Ornedo, Acting Municipal Treasurer
of Pagbilao, dated February 16, 1966, Exhibit 7, and I answered the same with the
letter marked as Exhibit 7-A, dated February 26, 1966. I received another letter of
demand from Treasurer Alvarez of Pagbilao, Exhibit 8, and I answered the same
 (Exhibit 8-A). In 1964, I went to Treasurer Caparros to ask for an application for license
tax and he said none and he told me just to pay my taxes. I did not pay because up to
now I do not know whether I am covered by the Ordinance or not. The letters of
demand asked me to pay different amounts for taxes for the fishpond. Because under
Sec. 2309 of the Revised Administrative Code, municipal taxes lapse if not paid and
they are collecting on a lapsed ordinance. Because under the Tax Code, fishermen
are exempted from percentage tax and privilege tax. There is no law empowering the
municipality to pass ordinance taxing fishpond operators.

The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4-B, 4-C,
5, 5-A, 6, 6-A, 6-B, 6-C, 7, 7-A, 8 and 8-A and the same were admitted by the court.

From their evidence the prosecution would want to show to the court that the accused,
as lessee or operator of a fishpond in the municipality of Pagbilao, refused, and still
refuses, to pay the municipal taxes for the years 1964, 1965 and 1966, in violation of
Municipal Ordinance No. 4, series of 1955, as amended by Municipal Ordinance No.
15, series of 1965, and finally amended by Municipal Ordinance No. 12, series of 1966.

On the other hand, the accused, by his evidence, tends to show to the court that the
taxes sought to be collected have already lapsed and that there is no law empowering
municipalities to pass ordinances taxing fishpond operators. The defense, by their
evidence, tried to show further that, as lessee of a forest land to be converted into a
fishpond, he is not covered by said municipal ordinances; and finally that the accused
should not be taxed as fishpond operator because there is no fishpond yet being
operated by him, considering that the supposed fishpond was under construction
during the period covered by the taxes sought to be collected.

Finally, the defendant claims that the ordinance in question is ultra vires as it is outside
of the power of the municipal council of Pagbilao, Quezon, to enact; and that the
defendant claims that the ordinance in question is ambiguous and uncertain.

There is no question from the evidences presented that the accused is a lessee of a
parcel of forest land, with an area of 27.1998 hectares, for fishpond purposes, under
Fishpond Lease Agreement No. 1066, entered into by the accused and the
government, through the Secretary of Agriculture and Natural Resources on August
21, 1959.

There is no question from the evidences presented that the 27.1998 hectares of land
leased by the defendant from the government for fishpond purposes was actually
converted into fishpond and used as such, and therefore defendant is an operator of
a fishpond within the purview of the ordinance in question. 1

The trial Court 2 returned a verdict of guilty and disposed as follows:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused guilty beyond
reasonable doubt of the crime of violation of Municipal Ordinance No. 4, series of 1955, as amended
by Ordinance No. 15, series of 1965 and further amended by Ordinance No. 12, series of 1966, of the
Municipal Council of Pagbilao, Quezon; and hereby sentences him to pay a fine of P50.00, with
subsidiary imprisonment in case of insolvency at the rate of P8.00 a day, and to pay the costs of this
proceeding.

SO ORDERED. 3
In this appeal, certified to this Court by the Court of Appeals, the petitioner alleges that:

I.

THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO. 4, SERIES OF 1955,
AS AMENDED BY ORDINANCE NO. 15, SERIES OF 1965, AND AS FURTHER AMENDED BY
ORDINANCE NO. 12, SERIES OF 1966, OF THE MUNICIPALITY OF PAGBILAO, QUEZON, IS
NULL AND VOID FOR BEING AMBIGUOUS AND UNCERTAIN.

II.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION, AS
AMENDED, IS UNCONSTITUTIONAL FOR BEING EX POST FACTO.

III.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION COVERS
ONLY OWNERS OR OVERSEER OF FISHPONDS OF PRIVATE OWNERSHIP AND NOT TO
LESSEES OF PUBLIC LANDS.

IV.

THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED ORDINANCE, EVEN IF
VALID, CANNOT BE ENFORCED BEYOND THE TERRITORIAL LIMITS OF PAGBILAO AND DOES
NOT COVER NON-
RESIDENTS. 4

The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15, series of 1965,
and Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao. Insofar as pertinent to this
appeal, the salient portions thereof are hereinbelow quoted:

Section 1. Any owner or manager of fishponds in places within the territorial limits of
Pagbilao, Quezon, shall pay a municipal tax in the amount of P3.00 per hectare of
fishpond on part thereof per annum. 5

xxx xxx xxx

Sec. l (a). For the convenience of those who have or owners or managers of fishponds
within the territorial limits of this municipality, the date of payment of municipal tax
relative thereto, shall begin after the lapse of three (3) years starting from the date said
fishpond is approved by the Bureau of Fisheries. 6

xxx xxx xxx

Section 1. Any owner or manager of fishponds in places within the territorial limits of
Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or any fraction
thereof per annum beginning and taking effect from the year 1964, if the fishpond
started operating before the year 1964. 7

The first objection refers to the ordinances being allegedly "ambiguous and uncertain." 8 The petitioner
contends that being a mere lessee of the fishpond, he is not covered since the said ordinances speak
of "owner or manager." He likewise maintains that they are vague insofar as they reckon the date of
payment: Whereas Ordinance No. 4 provides that parties shall commence payment "after the lapse of
three (3) years starting from the date said fishpond is approved by the Bureau of
Fisheries." 9 Ordinance No. 12 states that liability for the tax accrues "beginning and taking effect from
the year 1964 if the fishpond started operating before the year 1964." 10

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men
"of common intelligence must necessarily guess at its meaning and differ as to its application." 11 It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons,
especially the parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving
clause or by construction. Thus, in Coates v. City of Cincinnati, 12 the U.S. Supreme Court struck down
an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and
there conduct themselves in a manner annoying to persons passing by." 13 Clearly, the ordinance
imposed no standard at all "because one may never know in advance what 'annoys some people but
does not annoy others.' " 14

Coates highlights what has been referred to as a "perfectly vague" 15 act whose obscurity is evident on
its face. It is to be distinguished, however, from legislation couched in imprecise language — but which
nonetheless specifies a standard though defectively phrased — in which case, it may be "saved" by
proper construction.

It must further be distinguished from statutes that are apparently ambiguous yet fairly applicable to
certain types of activities. In that event, such statutes may not be challenged whenever directed
against such activities. In Parker v. Levy, 16 a prosecution originally under the U.S. Uniform Code of
Military Justice (prohibiting, specifically, "conduct unbecoming an officer and gentleman"), the
defendant, an army officer who had urged his men not to go to Vietnam and called the Special Forces
trained to fight there thieves and murderers, was not allowed to invoke the void for vagueness doctrine
on the premise that accepted military interpretation and practice had provided enough standards, and
consequently, a fair notice that his conduct was impermissible.

It is interesting that in Gonzales v. Commission on Elections, 17 a divided Court sustained an act of

Congress (Republic Act No. 4880 penalizing "the too early nomination of candidates" 18 limiting the
election campaign period, and prohibiting "partisan political activities"), amid challenges of vagueness
and overbreadth on the ground that the law had included an "enumeration of the acts deemed included
in the terms 'election campaign' or 'partisan political activity" 19 that would supply the standards. "As
thus limited, the objection that may be raised as to vagueness has been minimized, if not totally set at
rest." 20 In his opinion, however, Justice Sanchez would stress that the conduct sought to be prohibited
"is not clearly defined at all." 21 "As worded in R.A 4880, prohibited discussion could cover the entire
spectrum of expression relating to candidates and political parties." 22 He was unimpressed with the
"restrictions" Fernando's opinion had relied on: " 'Simple expressions of opinions and thoughts
concerning the election' and expression of 'views on current political problems or issues' leave the
reader conjecture, to guesswork, upon the extent of protection offered, be it as to the nature of the
utterance ('simple expressions of opinion and thoughts') or the subject of the utterance ('current
political problems or issues')." 23

The Court likewise had occasion to apply the "balancing-of-interests" test, 24 insofar as the statute's
ban on early nomination of candidates was concerned: "The rational connection between the
prohibition of Section 50-A and its object, the indirect and modest scope of its restriction on the rights
of speech and assembly, and the embracing public interest which Congress has found in the
moderation of partisan political activity, lead us to the conclusion that the statute may stand
consistently with and does not offend the Constitution." 25 In that case, Castro would have the balance
achieved in favor of State authority at the "expense" of individual liberties.

In the United States, which had ample impact on Castro's separate opinion, the balancing test finds a
close kin, referred to as the "less restrictive alternative " 26 doctrine, under which the court searches for
alternatives available to the Government outside of statutory limits, or for "less drastic means" 27 open
to the State, that would render the statute unnecessary. In United States v. Robel, 28 legislation was
assailed, banning members of the (American) Communist Party from working in any defense facility.
The U.S. Supreme Court, in nullifying the statute, held that it impaired the right of association, and that
in any case, a screening process was available to the State that would have enabled it to Identify
dangerous elements holding defense positions. 29 In that event, the balance would have been struck
in favor of individual liberties.

It should be noted that it is in free expression cases that the result is usually close. It is said, however,
that the choice of the courts is usually narrowed where the controversy involves say, economic
rights, 30 or as in the Levycase, military affairs, in which less precision in analysis is required and in
which the competence of the legislature is presumed.

In no way may the ordinances at bar be said to be tainted with the vice of vagueness. It is unmistakable
from their very provisions that the appellant falls within its coverage. As the actual operator of the
fishponds, he comes within the term " manager." He does not deny the fact that he financed the
construction of the fishponds, introduced fish fries into the fishponds, and had employed laborers to
maintain them. 31 While it appears that it is the National Government which owns them, 32 the
Government never shared in the profits they had generated. It is therefore only logical that he
shoulders the burden of tax under the said ordinances.

We agree with the trial court that the ordinances are in the character of revenue measures 33 designed
to assist the coffers of the municipality of Pagbilao. And obviously, it cannot be the owner, the
Government, on whom liability should attach, for one thing, upon the ancient principle that the
Government is immune from taxes and for another, since it is not the Government that had been
making money from the venture.

Suffice it to say that as the actual operator of the fishponds in question, and as the recipient of profits
brought about by the business, the appellant is clearly liable for the municipal taxes in question. He
cannot say that he did not have a fair notice of such a liability to make such ordinances vague.

Neither are the said ordinances vague as to dates of payment. There is no merit to the claim that "the
imposition of tax has to depend upon an uncertain date yet to be determined (three years after the
'approval of the fishpond' by the Bureau of Fisheries, and upon an uncertain event (if the fishpond
started operating before 1964), also to be determined by an uncertain individual or
individuals." 34 Ordinance No. 15, in making the tax payable "after the lapse of three (3) years starting
from the date said fishpond is approved by the Bureau of Fisheries," 35 is unequivocal about the date
of payment, and its amendment by Ordinance No. 12, reckoning liability thereunder "beginning and
taking effect from the year 1964 if the fishpond started operating before the year 1964 ," 36 does not
give rise to any ambiguity. In either case, the dates of payment have been definitely established. The
fact that the appellant has been allegedly uncertain about the reckoning dates — as far as his liability
for the years 1964, 1965, and 1966 is concerned — presents a mere problem in computation, but it
does not make the ordinances vague. In addition, the same would have been at most a difficult piece
of legislation, which is not unfamiliar in this jurisdiction, but hardly a vague law.
As it stands, then, liability for the tax accrues on January 1, 1964 for fishponds in operation prior
thereto (Ordinance No. 12), and for new fishponds, three years after their approval by the Bureau of
Fisheries (Ordinance No. 15). This is so since the amendatory act (Ordinance No. 12) merely granted
amnesty unto old, delinquent fishpond operators. It did not repeal its mother ordinances (Nos. 4 and
15). With respect to new operators, Ordinance No. 15 should still prevail.

To the Court, the ordinances in question set forth enough standards that clarify imagined ambiguities.
While such standards are not apparent from the face thereof, they are visible from the intent of the
said ordinances.

The next inquiry is whether or not they can be said to be ex post facto measures. The appellant argues
that they are: "Amendment No. 12 passed on September 19, 1966, clearly provides that the payment
of the imposed tax shall "beginning and taking effect from the year 1964, if the fishpond started
operating before the year 1964.' In other words, it penalizes acts or events occurring before its
passage, that is to say, 1964 and even prior thereto." 37

The Court finds no merit in this contention. As the Solicitor General notes, "Municipal Ordinance No.
4 was passed on May 14, 1955. 38 Hence, it cannot be said that the amendment (under Ordinance No.
12) is being made to apply retroactively (to 1964) since the reckoning period is 1955 (date of
enactment). Essentially, Ordinances Nos. 12 and 15 are in the nature of curative measures intended
to facilitate and enhance the collection of revenues the originally act, Ordinance No. 4, had
prescribed. 39 Moreover, the act (of non-payment of the tax), had been, since 1955, made punishable,
and it cannot be said that Ordinance No. 12 imposes a retroactive penalty. As we have noted, it
operates to grant amnesty to operators who had been delinquent between 1955 and 1964. It does not
mete out a penalty, much less, a retrospective one.

The appellant assails, finally, the power of the municipal council of Pagbilao to tax "public forest
land." 40 In Golden Ribbon Lumber Co., Inc. v. City of Butuan 41 we held that local governments' taxing
power does not extend to forest products or concessions under Republic Act No. 2264, the Local
Autonomy Act then in force. (Republic Act No. 2264 likewise prohibited municipalities from imposing
percentage taxes on sales.)

First of all, the tax in question is not a tax on property, although the rate thereof is based on the area
of fishponds ("P3.00 per hectare" 42). Secondly, fishponds are not forest lands, although we have held
them to the agricultural lands. 43 By definition, "forest" is "a large tract of land covered with a natural
growth of trees and underbush; a large wood." 44 (Accordingly, even if the challenged taxes were
directed on the fishponds, they would not have been taxes on forest products.)

They are, more accurately, privilege taxes on the business of fishpond maintenance. They are not
charged against sales, which would have offended the doctrine enshrined by Golden Ribbon
Lumber, 45 but rather on occupation, which is allowed under Republic Act No. 2264. 46 They are what
have been classified as fixed annual taxes and this is obvious from the ordinances themselves.

There is, then, no merit in the last objection.

WHEREFORE, the appeal is DISMISSED. Costs against the appellant.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Cortes, Griño-Aquino and
Medialdea, JJ., concur.

Melencio-Herrera, and Regalado, J., took no part.

Gancayco, J., is on leave.

Footnotes

1 Rollo, 7-13.

2 Court of First Instance of Quezon, Branch 11, Hon. Manolo Madella, Presiding
Judge.

3 Rollo, Id., 14.

4 Brief of Appellant, 1-2.

5 Mun. Ord. No. 4 (1955), Id., 3.

6 Mun. Ord. No. 15 (1965), Id., 4.

7 Mun. Ord. No. 12 (1966), Id.

8 Id., 6.

9 Id., 4.

10 Id.

11 TRIBE, AMERICAN CONSTITUTIONAL LAW 718 (1978), citing Connally v.

General Construction Co., 269 U.S. 385 (1926).

12 402 U.S. 611 (1971); see TRIBE, Id., 720-721.

13 See TRIBE, Id.

14 Id., 721.

15 Id., 720.

16 417 U.S. 733 (1974); see TRIBE, Id., 721.

17 No. L-27833, April 8, 1969, 27 SCRA 835, per Fernando, J.

18 Supra, 850.

19 Supra, 867.

20 Supra, 868.

21 Supra, 884; Sanchez, J., concurring and dissenting.

22 Supra.

23 Supra, 885.

24 Supra; see Castro, J., Separate Opinion, 888-913.

25 Supra, 902.

26 TRIBE, Id., 722.

27 Id.; see Shelton v. Tucker, 364 U.S. 479 (1960).

28 389 U.S. 258 (1967).

29 See TRIBE, Id., 723.

30 Id., 721.

31 Brief for the Appellee, 5.

32 It was the then Undersecretary of Agriculture and Natural Resources who signed
the lease contract.

33 Rollo, Id., 13.

34 Brief of Appellant, Id., 8.

35 Id., 4.

36 Id.

37 Id., 10.

38 Brief for the Appellee, Id., 8.

39 MARTIN, STATUTORY CONSTRUCTION 31-32 (1984).

40 Brief of Appellant, Id., 11 -12.

41 No. L-18535, December 24, 1964,12 SCRA 611.

42 Brief of Appellant, Id., 3.

43 Santiago v. Insular Government, 12 Phil. 593 (1909).

44 Ramos v. Director of Lands, 39 Phil. 175 (1918).

45 Supra.
 46 See Northern Philippines Tobacco Corporation v. Municipality of Agoo, La Union,
No. L-26447, January 30, 1970, 31 SCRA 304.

[Griswold v. Connecticut]

Brief Fact Summary. Appellants were charged with violating a statute preventing the
distribution of advice to married couples regarding the prevention of conception.
Appellants claimed that the statute violated the 14th Amendment to the United States
Constitution.

Synopsis of Rule of Law. The right of a married couple to privacy is protected by the
Constitution.

Facts. Appellant Griswold, Executive Director of the Planned Parenthood League of

Connecticut and Appellant Buxton, a licensed physician who served as Medical Director
for the League at its Center in New Haven, were arrested and charged with giving
information, instruction, and medical advice to married persons on means of preventing
conception. Appellants were found guilty as accessories and fined $100 each. Appellants
appealed on the theory that the accessory statute as applied violated the 14th
Amendment to the United States Constitution. Appellants claimed standing based on their
professional relationship with the married people they advised.

Issue. Does the Constitution provide for a privacy right for married couples?

Held. The First Amendment has a penumbra where privacy is protected from
governmental intrusion, which although not expressly included in the Amendment, is
necessary to make the express guarantees meaningful. The association of marriage is a
privacy right older than the Bill of Rights, and the State’s effort to control marital activities
in this case is unnecessarily broad and therefore impinges on protected Constitutional
freedoms.

Dissent. Justice Stewart and Justice Black. Although the law is silly, it is not
unconstitutional. The citizens of Connecticut should use their rights under the 9th and
10th Amendment to convince their elected representatives to repeal it if the law does not
conform to their community standards.

Concurrence. Justice Goldberg, the Chief Justice, and Justice Brennan. The right to
privacy in marriage is so basic and fundamental that to allow it to be infringed because it
is not specifically addressed in the first eight amendments is to give the 9th Amendment
no effect.
Justice Harlan. The relevant statute violates the Due Process Clause of the 14th
Amendment because if violates the basic values implicit in the concept of ordered liberty.

Discussion. The right to privacy in marriage is not specifically protected in either the Bill
of Rights or the Constitution. Nonetheless, it is a right so firmly rooted in tradition that its
protection is mandated by various Constitutional Amendments, including the 1st, 9th and
14th Amendments.

[G.R. No. 127685. July 23, 1998]

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

DECISION
PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to
prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and the right most valued by civilized
men."[1] Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two important
constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate,
and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant
the petition for the rights sought to be vindicated by the petitioner need stronger barriers
against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and
reads as follows:

"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents

with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently
identify persons seeking basic services on social security and reduce, if not
totally eradicate, fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic

services and social security providing agencies and other government
instrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:

SECTION 1. Establishment of a National Computerized Identification

Reference System. A decentralized Identification Reference System among
the key basic services and social security providers is hereby established.

SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating

Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator,
National Statistics Office Managing Director, National
Computer Center.

SEC. 3. Secretariat. The National Computer Center (NCC) is hereby

designated as secretariat to the IACC and as such shall provide administrative
and technical support to the IACC.

SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN)

generated by the NSO shall serve as the common reference number to
establish a linkage among concerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer
application designs of their respective systems.

SEC. 5. Conduct of Information Dissemination Campaign. The Office of the

Press Secretary, in coordination with the National Statistics Office, the GSIS
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.

SEC. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.

SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall
submit regular reports to the Office of the President, through the IACC, on the
status of implementation of this undertaking.

SEC. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January 22,
1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition
against respondents, then Executive Secretary Ruben Torres and the heads of the
government agencies, who as members of the Inter-Agency Coordinating Committee, are
charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary
restraining order enjoining its implementation.

Petitioner contends:

"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT.
THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL
USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR
THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION."[2]

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE

IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;

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

We now resolve.
I

As is usual in constitutional litigation, respondents raise the threshold issues relating

to the standing to sue of the petitioner and the justiciability of the case at bar. More
specifically, respondents aver that petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a
usurpation of legislative power.[4] As taxpayer and member of the Government Service
Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of
public funds and the misuse of GSIS funds to implement A.O. No. 308. [5]
The ripeness for adjudication of the petition at bar is not affected by the fact that the
implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails
A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for
the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents
themselves have started the implementation of A.O. No. 308 without waiting for the
rules. As early as January 19, 1997, respondent Social Security System (SSS) caused
the publication of a notice to bid for the manufacture of the National Identification (ID)
card.[6] Respondent Executive Secretary Torres has publicly announced that
representatives from the GSIS and the SSS have completed the guidelines for the
national identification system.[7] All signals from the respondents show their unswerving
will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass
judgment on its constitutionality. In this light, the dissenters insistence that we tighten the
rule on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.
II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the President
to issue. He alleges that A.O. No. 308 establishes a system of identification that is all-
encompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line between the
power of the Legislature to make laws and the power of the Executive to execute laws
will disturb their delicate balance of power and cannot be allowed. Hence, the exercise
by one branch of government of power belonging to another will be given a stricter
scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative
power is "the authority, under the Constitution, to make laws, and to alter and repeal
them."[8] The Constitution, as the will of the people in their original, sovereign and unlimited
capacity, has vested this power in the Congress of the Philippines. [9] The grant of
legislative power to Congress is broad, general and comprehensive. [10] The legislative
body possesses plenary power for all purposes of civil government.[11] Any power, deemed
to be legislative by usage and tradition, is necessarily possessed by Congress, unless
the Constitution has lodged it elsewhere.[12] In fine, except as limited by the Constitution,
either expressly or impliedly, legislative power embraces all subjects and extends to
matters of general concern or common interest.[13]
While Congress is vested with the power to enact laws, the President executes the
laws.[14] The executive power is vested in the President. [15] It is generally defined as the
power to enforce and administer the laws.[16] It is the power of carrying the laws into
practical operation and enforcing their due observance.[17]
As head of the Executive Department, the President is the Chief Executive. He
represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department.[18] He has control over the executive
department, bureaus and offices. This means that he has the authority to assume directly
the functions of the executive department, bureau and office, or interfere with the
discretion of its officials.[19] Corollary to the power of control, the President also has the
duty of supervising the enforcement of laws for the maintenance of general peace and
public order. Thus, he is granted administrative power over bureaus and offices under
his control to enable him to discharge his duties effectively.[20]
 Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs.[21] It enables the
President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents.[22] To this end, he can issue administrative orders,
rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An administrative
order is:

"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects
of governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders."[23]

An administrative order is an ordinance issued by the President which relates to specific

aspects in the administrative operation of government. It must be in harmony with the
law and should be for the sole purpose of implementing the law and carrying out
the legislative policy.[24] We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural
principles of governance"[25] and "embodies changes in administrative structures and
procedures designed to serve the people."[26] The Code is divided into seven (7)
Books: Book I deals with Sovereignty and General Administration, Book II with the
Distribution of Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on the Constitutional Commissions,
Book VI on National Government Budgeting, and Book VII on Administrative Procedure.
These Books contain provisions on the organization, powers and general administration
of the executive, legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other constitutional
bodies, the rules on the national government budget, as well as guidelines for the exercise
by administrative agencies of quasi-legislative and quasi-judicial powers. The Code
covers both the internal administration of government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the effects of the functions performed by
administrative officials on private individuals or parties outside government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National Computerized
Identification Reference System. Such a System requires a delicate adjustment of various
contending state policies-- the primacy of national security, the extent of privacy interest
against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent
of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic rights of
our citizenry vis-a-vis the State as well as the line that separates the administrative power
of the President to make rules and the legislative power of Congress, it ought to be evident
that it deals with a subject that should be covered by law.
 Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because
it confers no right, imposes no duty, affords no protection, and creates no office. Under
A.O. No. 308, a citizen cannot transact business with government agencies delivering
basic services to the people without the contemplated identification card. No citizen will
refuse to get this identification card for no one can avoid dealing with government. It is
thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights
and enjoying his privileges. Given this reality, the contention that A.O. No. 308 gives no
right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of Congress to
make laws. This is contrary to the established approach defining the traditional limits of
administrative legislation. As well stated by Fisher: "x x x Many regulations however,
bear directly on the public. It is here that administrative legislation must be
restricted in its scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress enacts in the form of a
public law. Although administrative regulations are entitled to respect, the
authority to prescribe rules and regulations is not an independent source of power
to make laws."[28]

III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it
cannot pass constitutional muster asan administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to be let
alone."[29] In the 1965 case of Griswold v. Connecticut,[30] the United States Supreme
Court gave more substance to the right of privacy when it ruled that the right has a
constitutional foundation. It held that there is a right of privacy which can be found within
the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, [31] viz:

"Specific guarantees in the Bill of Rights have penumbras formed by

emanations from these guarantees that help give them life and substance x x
x. Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers `in
any house' in time of peace without the consent of the owner is another facet
of that privacy. The Fourth Amendment explicitly affirms the `right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth
Amendment provides: `The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
"xxx

The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector-- protection, in other
words, of the dignity and integrity of the individual--has become increasingly
important as modern society has developed. All the forces of a technological
age --industrialization, urbanization, and organization-- operate to narrow the
area of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference between
a democratic and a totalitarian society.'"

Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution.[33] It is
expressly recognized in Section 3(1) of the Bill of Rights:

"Sec. 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law."

Other facets of the right to privacy are protected in various provisions of the Bill of Rights,
viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.

Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

x x x.

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

x x x.

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

Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons" and punishes as actionable torts
several acts by a person of meddling and prying into the privacy of another.[35] It also holds
a public officer or employee or any private individual liable for damages for any violation
of the rights and liberties of another person,[36] and recognizes the privacy of letters and
other private communications.[37] The Revised Penal Code makes a crime the violation of
secrets by an officer,[38] the revelation of trade and industrial secrets,[39] and trespass to
dwelling.[40] Invasion of privacy is an offense in special laws like the Anti-Wiretapping
Law,[41] the Secrecy of Bank Deposit Act[42] and the Intellectual Property Code.[43] The Rules
of Court on privileged communication likewise recognize the privacy of certain
information.[44]
Unlike the dissenters, we prescind from the premise that the right to privacy is
a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state interest
and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the
need to provide our citizens and foreigners with the facility to conveniently transact
business with basic service and social security providers and other government
instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent
transactions and misrepresentations by persons seeking basic services. It is debatable
whether these interests are compelling enough to warrant the issuance of A.O. No.
308. But what is not arguable is the broadness, the vagueness, the overbreadth of
A.O. No. 308 which if implemented will put our people's right to privacy in clear and
present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a linkage among
concerned agencies" through the use of "Biometrics Technology" and "computer
application designs."
Biometry or biometrics is "the science of the application of statistical methods to
biological facts; a mathematical analysis of biological data."[45] The term "biometrics" has
now evolved into a broad category of technologies which provide precise
confirmation of an individual's identity through the use of the individual's own
physiological and behavioral characteristics.[46] A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry
or facial features. A behavioral characteristic is influenced by the individual's
personality and includes voice print, signature and keystroke. [47] Most biometric
identification systems use a card or personal identification number (PIN) for initial
identification. The biometric measurement is used to verify that the individual holding the
card or entering the PIN is the legitimate owner of the card or PIN.[48]
A most common form of biological encoding is finger-scanning where technology
scans a fingertip and turns the unique pattern therein into an individual number which is
called a biocrypt. The biocrypt is stored in computer data banks[49] and becomes a means
of identifying an individual using a service. This technology requires one's fingertip to be
scanned every time service or access is provided.[50] Another method is the retinal scan.
Retinal scan technology employs optical technology to map the capillary pattern of the
retina of the eye. This technology produces a unique print similar to a finger
print.[51] Another biometric method is known as the "artificial nose." This device
chemically analyzes the unique combination of substances excreted from the skin of
people.[52] The latest on the list of biometric achievements is the thermogram. Scientists
have found that by taking pictures of a face using infra-red cameras, a unique heat
distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat signature."[53]
In the last few decades, technology has progressed at a galloping rate. Some science
fictions are now science facts. Today,biometrics is no longer limited to the use of
fingerprint to identify an individual. It is a new science that uses various technologies
in encoding any and all biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific biological characteristics
and what particular biometrics technology shall be used to identify people who will
seek its coverage. Considering the banquet of options available to the
implementors of A.O. No. 308, the fear that it threatens the right to privacy of our
people is not groundless.
 A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information alone
for identification purposes. In fact, the Solicitor General claims that the adoption of the
Identification Reference System will contribute to the "generation of population data for
development planning."[54]This is an admission that the PRN will not be used solely for
identification but for the generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the
government the roving authority to store and retrieve information for a purpose
other than the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot
be underplayed as the dissenters do.Pursuant to said administrative order, an
individual must present his PRN everytime he deals with a government agency to avail of
basic services and security. His transactions with the government agency will necessarily
be recorded-- whether it be in the computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for medication, hospitalization,
etc. The more frequent the use of the PRN, the better the chance of building a huge
and formidable information base through the electronic linkage of the files. [55] The
data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our authorities
to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to the name,
address and other basic personal information about the individual.[57] Even that hospitable
assumption will not save A.O. No. 308 from constitutional infirmity for again said order
does not tell us in clear and categorical terms how these information gathered shall
be handled. It does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to safeguard the
privacy and guaranty the integrity of the information.[58] Well to note, the computer linkage
gives other government agencies access to the information. Yet, there are no controls
to guard against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without fear of sanction
or penalty, can make use of the data for whatever purpose, or worse, manipulate the data
stored within the system.[59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed
for unequivocally specified purposes.[60] The lack of proper safeguards in this regard of
A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling
authorities to track down his movement; it may also enable unscrupulous persons to
access confidential information and circumvent the right against self-incrimination; it may
pave the way for "fishing expeditions" by government authorities and evade the right
against unreasonable searches and seizures.[61]The possibilities of abuse and misuse
of the PRN, biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or placed on his
ID, much less verify the correctness of the data encoded.[62] They threaten the very
abuses that the Bill of Rights seeks to prevent.[63]
The ability of a sophisticated data center to generate a comprehensive cradle-to-
grave dossier on an individual and transmit it over a national network is one of the most
graphic threats of the computer revolution.[64] The computer is capable of producing a
comprehensive dossier on individuals out of information given at different times and for
varied purposes.[65] It can continue adding to the stored data and keeping the information
up to date. Retrieval of stored data is simple. When information of a privileged character
finds its way into the computer, it can be extracted together with other data on the
subject.[66] Once extracted, the information is putty in the hands of any person. The end
of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions
would dismiss its danger to the right to privacy as speculative and hypothetical. Again,
we cannot countenance such a laidback posture. The Court will not be true to its role as
the ultimate guardian of the people's liberty if it would not immediately smother the sparks
that endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the National ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of aperson's
expectation of privacy depends on a two-part test: (1) whether by his conduct, the
individual has exhibited an expectation of privacy; and (2) whether this expectation is one
that society recognizes as reasonable.[67] The factual circumstances of the case
determines the reasonableness of the expectation. [68] However, other factors, such as
customs, physical surroundings and practices of a particular activity, may serve to create
or diminish this expectation.[69] The use of biometrics and computer technology in A.O. No.
308 does not assure the individual of a reasonable expectation of privacy.[70] As technology
advances, the level of reasonably expected privacy decreases. [71] The measure of
protection granted by the reasonable expectation diminishes as relevant technology
becomes more widely accepted.[72] The security of the computer data file depends not only
on the physical inaccessibility of the file but also on the advances in hardware and
software computer technology. A.O. No. 308 is so widely drawn that a minimum
standard for a reasonable expectation of privacy, regardless of technology used,
cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. 308 gives the IACC virtually unfettered discretion to determine the metes
and bounds of the ID System.
Nor do our present laws provide adequate safeguards for
a reasonable expectation of privacy. Commonwealth Act No. 591 penalizes the
disclosure by any person of data furnished by the individual to the NSO with imprisonment
and fine.[73]Republic Act No. 1161 prohibits public disclosure of SSS employment records
and reports.[74] These laws, however, apply to records and data with the NSO and the SSS.
It is not clear whether they may be applied to data with the other government agencies
forming part of the National ID System. The need to clarify the penal aspect of A.O. No.
308 is another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right
of privacy by using the rational relationship test.[75] He stressed that the purposes of
A.O. No. 308 are: (1) to streamline and speed
up the implementation ofbasic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development planning. He
concludes that these purposes justify the incursions into the right to privacy for the means
are rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police
power measure. We declared that the law, in compelling a public officer to make an
annual report disclosing his assets and liabilities, his sources of income and expenses,
did not infringe on the individual's right to privacy. The law was enacted to promote
morality in public administration by curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the public service. [78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a
statute, not an administrative order.Secondly, R.A. 3019 itself is sufficiently detailed. The
law is clear on what practices were prohibited and penalized, and it was narrowly drawn
to avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by a worthy
purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we
now hold that when the integrity of a fundamental right is at stake, this court will
give the challenged law, administrative order, rule or regulation a stricter
scrutiny. It will not do for the authorities to invoke the presumption of regularity in
the performance of official duties. Nor is it enough for the authorities to prove that
their act is not irrational for a basic right can be diminished, if not defeated, even
when the government does not act irrationally. They must satisfactorily show the
presence of compelling state interests and that the law, rule, or regulation is
narrowly drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and to prevent
authoritarianism. In case of doubt, the least we can do is to lean towards the stance that
will not put in danger the rights protected by the Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line. In Whalen,
the United States Supreme Court was presented with the question of whether the State
of New York could keep a centralized computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a doctor's prescription. The New York
State Controlled Substances Act of 1972 required physicians to identify patients obtaining
prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use
but with a potential for abuse, so that the names and addresses of the patients can be
recorded in a centralized computer file of the State Department of Health. The plaintiffs,
who were patients and doctors, claimed that some people might decline necessary
medication because of their fear that the computerized data may be readily available and
open to public disclosure; and that once disclosed, it may stigmatize them as drug
addicts.[80] The plaintiffs alleged that the statute invaded a constitutionally protected zone
of privacy, i.e, the individual interest in avoiding disclosure of personal matters, and the
interest in independence in making certain kinds of important decisions. The U.S.
Supreme Court held that while an individual's interest in avoiding disclosure of personal
matters is an aspect of the right to privacy, the statute did not pose a grievous threat to
establish a constitutional violation. The Court found that the statute was necessary to aid
in the enforcement of laws designed to minimize the misuse of dangerous drugs. The
patient-identification requirement was a product of an orderly and rational
legislative decision made upon recommendation by a specially appointed
commission which held extensive hearings on the matter. Moreover, the statute
was narrowly drawn and contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and requirements for the gathering,
storage and retrieval of the information. It enumerated who were authorized to access the
data. It also prohibited public disclosure of the data by imposing penalties for its violation.
In view of these safeguards, the infringement of the patients' right to privacy was justified
by a valid exercise of police power. As we discussed above, A.O. No. 308 lacks these
vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is
not per se against the use of computers to accumulate, store, process, retrieve and
transmit data to improve our bureaucracy. Computers work wonders to achieve the
efficiency which both government and private industry seek. Many information systems
in different countries make use of the computer to facilitate important social objectives,
such as better law enforcement, faster delivery of public services, more efficient
management of credit and insurance programs, improvement of telecommunications and
streamlining of financial activities.[81] Used wisely, data stored in the computer could help
good administration by making accurate and comprehensive information for those who
have to frame policy and make key decisions.[82] The benefits of the computer
hasrevolutionized information technology. It developed the internet, [83] introduced the
concept of cyberspace[84] and the information superhighway where the individual, armed
only with his personal computer, may surf and search all kinds and classes of information
from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar
all incursions into individual privacy.The right is not intended to stifle scientific
and technological advancements that enhance public service and the common
good. It merely requires that the law be narrowly focused [85] and a compelling interest
justify such intrusions.[86]Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate
that any law or order that invades individual privacy will be subjected by this Court to strict
scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:

"The concept of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen. This is indeed
one of the basic distinctions between absolute and limited government. Ultimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector-- protection, in other words, of the
dignity and integrity of the individual-- has become increasingly important as modern
society has developed. All the forces of a technological age-- industrialization,
urbanization, and organization-- operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society." [87]

IV

The right to privacy is one of the most threatened rights of man living in a mass
society. The threats emanate from various sources-- governments, journalists,
employers, social scientists, etc.[88] In the case at bar, the threat comes from the executive
branch of government which by issuing A.O. No. 308 pressures the people to surrender
their privacy by giving information about themselves on the pretext that it will facilitate
delivery of basic services. Given the record-keeping power of the computer, only the
indifferent will fail to perceive the danger that A.O. No. 308 gives the government
the power to compile a devastating dossier against unsuspecting citizens. It is
timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could
be that everyone will live burdened by an unerasable record of his past and his
limitations. In a way, the threat is that because of its record-keeping, the society will have
lost its benign capacity to forget."[89] Oblivious to this counsel, the dissents still say we
should not be too quick in labelling the right to privacy as a fundamental right. We close
with the statement that the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" declared null and
void for being unconstitutional.
SO ORDERED.

Narvasa, C.J., Melo, and Quisumbing, JJ., joins J. Kapunan and J. Mendoza in their
dissents.
Regalado, J., in the result.
Davide, Jr., in the result; joins J. Panganiban in his separate opinion.
Romero, Vitug and Panganiban, JJ., see separate opinion.
Kapunan, and Mendoza, JJ., see dissenting opinion.
Bellosillo, and Martinez, JJ., concur.
Purisima, J., joins J. Mendozas dissent.

[1]
Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478 [1928].
[2]
Petition, p. 9, Rollo, p. 11.
[3]
Comment, pp. 6, 9, 14, 15, Rollo, pp. 65, 68, 73-74.
[4]
Philconsa v. Enriquez, 235 SCRA 506 [1994]; Guingona v. PCGG, 207 SCRA 659 [1992]; Tolentino v.
Commission on Elections, 41 SCRA 702 [1971].
[5]
Sanidad v. Commission on Elections, 73 SCRA 333 [1976]; Pascual v. Secretary of Public Works, 110
Phil. 331 [1960].
[6]
"Invitation to Bid," Annex "E" to the Petition, Rollo, p. 50.
[7]
Annex "B" to Petitioner's Reply, Rollo, p. 144.
[8]
Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 [1927].
[9]
Section 1, Article VI, 1987 Constitution
[10]
Fernando, The Philippine Constitution, pp. 175-176 [1974].
[11]
Id., at 177; citing the concurring opinion of Justice Laurel in Schneckenburger v. Moran, 63 Phil. 249,
266 [1936].
[12]
Vera v. Avelino, 77 Phil. 192, 212 [1936].
[13]
See concurring opinion of Justice Laurel in Schneckenburger v. Moran, supra, at 266-267.
[14]
Government of the Philippine Islands v. Springer, 50 Phil. 259, 305 [1927].
[15]
Section 1, Article VII, 1987 Constitution.
[16]
Cruz, Philippine Political Law, p. 173 [1996].
[17]
Tanada and Carreon, Political Law of the Philippines, vol. 1, p. 275 [1961].
[18]
Section 17, Article VII of the 1987 Constitution provides:
"Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed."
[19]
Pelaez v. Auditor General, 15 SCRA 569, 583 [1965].
[20]
Sinco, Philippine Political Law, pp. 234-235 [1962].
[21]
Id., at 234.
[22]
Id., at 235.
[23]
Section 3, Chapter 2, Title I, Book III, Administrative Code of 1987.
[24]
Cruz, Philippine Administrative Law, p.18 (1991).
[25]
Third Whereas Clause, Administrative Code of 1987.
[26]
Fourth Whereas Clause, Administrative Code of 1987.
[27]
See Cortes, Philippine Administrative Law, pp. 2-5 [1984].
[28]
Fisher, Constitutional Conflicts Between Congress and the President, 4th ed., pp. 106-107.
[29]
Cooley on Torts, Sec. 135, vol. 1, 4th ed., [1932]; see also Warren and Brandeis, "The Right to Privacy,"
4 Harvard Law Review 193-220 [1890] - this article greatly influenced the enactment of privacy statutes in
the United States (Cortes, I., The Constitutional Foundations of Privacy, p. 15 [1970]).
[30]
381 U.S. 479, 14 L. ed. 2d 510 [1965].
[31]
AMENDMENT I [1791]
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.
AMENDMENT III [1791]
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time
of war, but in a manner to be prescribed by law.
AMENDMENT IV [1791]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
AMENDMENT V [1791]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.
xxx
AMENDMENT IX [1791]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.
[32]
22 SCRA 424, 444-445.
[33]
Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18
[1970].
[34]
Cortes, The Constitutional Foundations of Privacy, p. 18 [1970].
[35]
Article 26 of the Civil Code provides:
"Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and
other persons. The following and similar acts, though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth,
physical defect, or other personal condition."
[36]
Article 32, Civil Code.
[37]
Article 723, Civil Code.
[38]
Article 229, Revised Penal Code.
[39]
Articles 290-292, Revised Penal Code.
[40]
Article 280, Revised Penal Code.
[41]
R.A. 4200.
[42]
R.A. 1405.
[43]
R.A. 8293.
[44]
Section 24, Rule 130 [C], Revised Rules on Evidence.
[45]
"Biometry," Dorland's Illustrated Medical Dictionary, 24th ed. [1965]. "Biometry" or "biometrics" is literally,
the measurement of living things; but it is generally used to mean the application of mathematics to biology.
The term is now largely obsolete as a biological science since mathematical or statistical work is an integral
part of most biological disciplines (The Dictionary of Science [1993]).
[46]
"Biometric Identification," http://www.afmc.wpafb.af. mil/=organizations/HQ-
AFMC/LG/LSO/LOA/bio.html; see also "Biometrics Explained- Section-1,"
http://www.ncsa.com/services/consortia/cbdc/sec1.html.
[47]
Id.
[48]
Id.
[49]
Or in microchips of smart cards and magnetic strips of bank cards.
[50]
"Privacy at Risk, Finger-scanning for Ideology and Profit" [1998], file:///DI/commentary.html
[51]
"Biometric Identification," http://www.afmc.wpafb.af.mil/organizations/HQ-AFMC/LG/LSO/LOA/bio.html
[52]
"The Libertarian Library: Facing Up to Biometrics," The Mouse Monitor, The International Journal of
Bureau-Rat Control [1998],http://www.cyberhaven.com/libertarian/biomet.html.
[53]
Id. The thermogram is so accurate that it can tell identical twins apart and cannot be fooled by cosmetic
surgery or disguises, including facial hair.
[54]
"An updated national population register will provide a suitable base for all types of planning and
programming of government facilities and services" (Memorandum of the Solicitor General, p. 20, Rollo, p.
210).
[55]
Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law Review, vol. 135:
707, 717 [March 1985].
[56]
Sloan, I. Law of Privacy Rights in a Technological Society, p. 6 [1986].
[57]
Respondent GSIS, through counsel, claims that the basic information shall be limited to the individual's
full name, place of birth, date of birth, photograph, signature and thumbmark (Comment of Respondent
GSIS, p. 6, Rollo, p. 101).
[58]
Otani, K. "Information Security in the Network Age," 70 Philippine Law Journal, 1, 9 [1995].
[59]
Cortes, I., The Constitutional Foundations of Privacy, p. 12 (1970).
[60]
Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law Review, vol. 135:
707, 740 [March 1987].
[61]
Ibid., p. 718.
[62]
The right to control the collection, maintenance, use, and dissemination of data about oneself is called
"informational privacy" (Hancock, G., "California's Privacy Act: Controlling Government's Use of
Information? 32 Stanford Law Review no. 5, p. 1001 [May 1980]. The right to make personal decisions or
conduct personal activities without intrusion, observation or interference is called "autonomy privacy" (Hill
v. NCAA, 865 P. 2d 633, 652-654 [Cal. 1994].
[63]
Hosch, "The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis,"
Vanderbilt Law Review vol. 36: 139, 142 [Jan. 1983].
[64]
Miller, "Personal Privacy in the Computer Age, The Challenge of a New Technology in an Information-
Oriented Society," 67 Michigan Law Review 1091, 1119 [1969]; see also Cortes, supra, at 13.
[65]
Cortes, I. The Constitutional Foundation Foundation of Privacy, p.12 [1970].
[66]
Id.
[67]
Rakas v. Illinois, 439 U.S. 128, 143-144 [1978]; see the decision and Justice Harlan's concurring
opinion in Katz v. United States, 389 U.S. 347, 353, 361, 19 L. ed. 2d 576, 583, 587-589 [1967]; see also
Southard, "Individual Privacy and Governmental Efficiency: Technology's Effect on the Government's
Ability to Gather, Store, and Distribute Information" (Computer/Law Journal, vol. IX, pp. 359, 367, note 63
[1989]).
[68]
Kennedy, "Note: Emasculating a State's Constitutional Right to Privacy: The California Supreme Court's
Decision in Hill v. NCAA," Temple Law Review, vol. 68: 1497, 1517 [1995].
[69]
Id.
[70]
Southard, supra, at 369.
[71]
Id; see also Laurence H. Tribe, "The Constitution in Cyberspace: Law and Liberty Beyond the Electronic
Frontier," Keynote Address at the First Conference on Computers, Freedom and Privacy, at Jim Warren &
Computer Professionals for Social Responsibility [1991].
[72]
As one author has observed, previously, one could take steps to ensure an expectation of privacy in a
private place, e.g., locking of doors and closing of curtains. Because advances in surveillance technology
have made these precautions meaningless, the expectation of the privacy they offer is no longer justifiable
and reasonable-- Southard, supra, at 369.
[73]
Section 4, Commonwealth Act No. 591 [1940].
[74]
Sections 24 [c] and 28 [e], R.A. 1161, as amended.
[75]
Citing Morfe v. Mutuc, 22 SCRA 424, 445 [1968].
[76]
Comment of the Solicitor General, p. 16, Rollo, p. 75.
[77]
Op. cit., note 76.
[78]
Id., at 435.
[79]
429 U.S. 589, 51 L ed. 2d 64 [1977].
[80]
Some of the patients were children whose parents feared would be stigmatized by the State's central
filing system.
[81]
Sloan, Law of Privacy Rights in a Technological Society, p. 4 [1986].
[82]
Southard, "Individual Privacy and Governmental Efficiency: Technology's Effect on the Government's
Ability to Gather, Store, and Distribute Information," IX Computer/Law Journal 359, 360 [1989].
[83]
The Internet is a decentralized network interconnected by the TCP/IP protocol. The Net was started as
a military network ARPANET in 1969 by the US Department of Defense for the purpose of networking main
frame computers to prepare against missile weapons. It opened to public research organizations and
universities in 1983 and has been interconnected with commercial networks since 1990 (Kazuko Otani,
"Information Security in the Network Age," Philippine Law Journal, vol. 70: 1, 2 [1995]).
[84]
Cyberspace is a place located in no particular geographical location but available to anyone, anywhere
in the world, with access to the internet (Darrel Menthe, "Jurisdiction in Cyberspace: A Theory of
International Spaces 4 Mich. Tel. Tech. L. Rev. 3 (April 23, 1998), <http://www. law.umich.edu/
mttlr/volfour/menthe.html>.
[85]
Southard, supra, at 361-362
[86]
Id; White v. Davis, 533 P. 2d 222 [Cal. 1975]; City of Sta. Barbara v. Adamson, 610 P. 2d 436 [Cal. 1980].
In his concurring opinion in Whalen v. Roe, Justice Brennan stated that a statute that deprives an individual
of his privacy is not unconstitutional only if it was necessary to promote a compelling state interest (429
U.S. 589, 606-607, 51 L. ed. 2d 64, 77- 78).
[87]
Morfe v. Mutuc, supra, at 444-445 citing Emerson, "Nine Justices in Search of a Doctrine," 64 Michigan
Law Review 219, 229 [1965].
[88]
See Shils, "Privacy: Its Constitution and Vicissitudes," Law and Contemporary Problems, vol. 31, pp.
301-303 [1966].
[89]
Harry Kalvin, Jr., "The Problems of Privacy in the Year 2000," Daedalus, vol. 96, pp. 876-879 [1967].
 EN BANC

[G.R. No. 169838 April 25, 2006]

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.

x---------------------------------x

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

x---------------------------------x

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed by the police. They further
assert that on October 5, 2005, a group they participated in marched to Malacañang to protest
issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.
 (d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.

Sec. 4. Permit when required and when not required. – A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Sec. 5. Application requirements. – All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-
four hours.
 (e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately
executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit; |avv phi| .net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
 in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.

Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances
or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended,
or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21,
2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:

Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words "lawful cause," "opinion,"
"protesting or influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly
and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila
City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila
Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test
for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assembly’s time, place and manner of conduct. It entails traffic re-
routing to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time,
place and manner of holding public assemblies and the law passes the test for such
regulation, namely, these regulations need only a substantial governmental interest to
support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it
a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and
present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)

and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response

(CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:

1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum
tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing
developments.

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v.
Apurado,16 already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners’ rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the people’s exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."

Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and
to assembly and petition over comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias,
this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and
to petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It
must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias
made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the commerce of
man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is
not the only purpose that it could serve. To repeat, there can be no valid reason why a permit
should not be granted for the proposed march and rally starting from a public park that is the
Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that ‘a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity
to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty itself would be lost in
the excesses of unrestricted abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some
civil right which in other circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes
in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose;
not as to the relations of the speakers, but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held accountable. It is true
that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of
what may probably occur, given all the relevant circumstances, still the assumption –
especially so where the assembly is scheduled for a specific public place – is that the permit
must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."

xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one entitled to its legal possession
is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional values.
It cannot be too strongly stressed that on the judiciary, -- even more so than on the other
departments – rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x
x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983, Sec. 4. Permit when required and when not
required.-- A written permit shall be
125 SCRA 553, 569) required for any person or persons to
organize and hold a public assembly in a
8. By way of a summary. The applicants for public place. However, no permit shall be
a permit to hold an assembly should inform required if the public assembly shall be
the licensing authority of the date, the done or made in a freedom park duly
public place where and the time when it will established by law or ordinance or in
take place. If it were a private place, only private property, in which case only the
the consent of the owner or the one entitled consent of the owner or the one entitled to
to its legal possession is required. Such its legal possession is required, or in the
application should be filed well ahead in campus of a government-owned and
time to enable the public official concerned operated educational institution which shall
to appraise whether there may be valid be subject to the rules and regulations of
objections to the grant of the permit or to its said educational institution. Political
grant but at another public place. It is an meetings or rallies held during any election
indispensable condition to such refusal or campaign period as provided for by law are
modification that the clear and present not covered by this Act.
danger test be the standard for the decision
reached. If he is of the view that there is Sec. 5. Application requirements.-- All
such an imminent and grave danger of a applications for a permit shall comply with
substantive evil, the applicants must be the following guidelines:
heard on the matter. Thereafter, his
decision, whether favorable or adverse, (a) The applications shall be in
must be transmitted to them at the earliest writing and shall include the names
opportunity. Thus if so minded, they can of the leaders or organizers; the
have recourse to the proper judicial purpose of such public assembly;
authority. the date, time and duration thereof,
and place or streets to be used for
the intended activity; and the
probable number of persons
participating, the transport and the
public address systems to be used.

(b) The application shall incorporate

the duty and responsibility of
applicant under Section 8 hereof.

(c) The application shall be filed

with the office of the mayor of the
city or municipality in whose
jurisdiction the intended activity is to
be held, at least five (5) working
 days before the scheduled public
assembly.

(d) Upon receipt of the application,

which must be duly acknowledged
in writing, the office of the city or
municipal mayor shall cause the
same to immediately be posted at a
conspicuous place in the city or
municipal building.

Sec. 6. Action to be taken on the

application. –

(a) It shall be the duty of the mayor

or any official acting in his behalf to
issue or grant a permit unless there
is clear and convincing evidence
that the public assembly will create
a clear and present danger to public
order, public safety, public
convenience, public morals or
public health.

(b) The mayor or any official acting

in his behalf shall act on the
application within two (2) working
days from the date the application
was filed, failing which, the permit
shall be deemed granted. Should
for any reason the mayor or any
official acting in his behalf refuse to
accept the application for a permit,
said application shall be posted by
the applicant on the premises of the
office of the mayor and shall be
deemed to have been filed.

(c) If the mayor is of the view that

there is imminent and grave danger
of a substantive evil warranting the
denial or modification of the permit,
he shall immediately inform the
applicant who must be heard on the
matter.

(d) The action on the permit shall

be in writing and served on the
applica[nt] within twenty-four hours.
 (e) If the mayor or any official acting
in his behalf denies the application
or modifies the terms thereof in his
permit, the applicant may contest
the decision in an appropriate court
of law.

(f) In case suit is brought before the

Metropolitan Trial Court, the
Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional
Trial Court, or the Intermediate
Appellate Court, its decisions may
be appealed to the appropriate
court within forty-eight (48) hours
after receipt of the same. No appeal
bond and record on appeal shall be
required. A decision granting such
permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.

(g) All cases filed in court under this

section shall be decided within
twenty-four (24) hours from date of
filing. Cases filed hereunder shall
be immediately endorsed to the
executive judge for disposition or, in
his absence, to the next in rank.

(h) In all cases, any decision may

be appealed to the Supreme Court.

(i) Telegraphic appeals to be

followed by formal appeals are
hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted to
in Osmeña v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 that would use public places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing"
in the definition of public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the Constitution, so
its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.

Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common
interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at
any time:

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park – Fuente Osmeña.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set
aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the law’s system of
regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the
legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the
dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. – For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
1avv phil.net

agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

xxx
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity
of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law, and it will be the burden
of the authorities to show that there has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected
to heightenedscrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot
be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayor’s office to allow
proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.

No costs.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice

Footnotes

1Petition for Certiorari, Mandamus and Prohibition with Prayer for Temporary Restraining
Order filed by Bayan, Karapatan, Kilusang Magbubukid Ng Pilipinas (KMP), COURAGE,
GABRIELA, Fr. Jose A. Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar.

2 Petition for Prohibition, Injunction, Restraining Order and other Just and Equitable Reliefs
filed by Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita
Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos,
Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute,
Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier,
Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes,
Pedrito Fadrigon.

3Petition for Certiorari, Prohibition and Mandamus with Prayer for Issuance of Restraining
Order filed by Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and
Secretary General Joel Maglunsod, National Federation of Labor Unions – Kilusang Mayo
Uno (NAFLU-KMU), represented by its National President, Joselito V. Ustarez, Antonio C.
Pascual, Salvador T. Carranza, Gilda Sumilang, Francisco Lastrella, and Roque M. Tan.

4 Petitioner Gilda Sumilang.

5 Petition, G.R. No. 169838, p. 29.

6Citing Adiong v. Commission on Elections, 207 SCRA 712 (1992); United States v. O’Brien,
391 U.S. 367, 20 L. Ed. 2d 672 (1968); see R.D. Rotunda, et al., TREATISE ON
CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE (1986) citing Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed. 2d 221
(1984).

7 G.R. No. 132231, March 31, 1998, 288 SCRA 447.

8 G.R. No. 103956, March 31, 1992, 207 SCRA 712.

9 G.R. No. 71169, August 25, 1989, 176 SCRA 719.

10Citing Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996, 259 SCRA
529.

11
G. R. No. L-65366, November 9, 1983, 125 SCRA 553.

12 80 Phil. 71 (1948).

13 G.R. No. 124540, November 14, 1997.

14 Resolution dated March 28, 2006.

15 346 Phil. 665-666 (1997).

16 7 Phil. 422 (1907).

17 80 Phil. 71 (1948).

18 Ibid at 75-76 (Emphasis supplied).

19 G.R. No. L-65366, November 9, 1983, 125 SCRA 553.

20 G.R. No. 132231, March 31, 1998, 288 SCRA 447.

21 Ibid, p. 478.

22Except picketing and other concerted action in strike areas by workers and employees
resulting from a labor dispute, which are governed by the Labor Code and other labor laws;
political meeting or rallies held during any election campaign period, which are governed by
the Election Code and other election related laws; and public assemblies in the campus of a
government-owned and operated educational institution, which shall be subject to the rules
and regulations of said educational institution. (Sec. 3[a] and Sec. 4 of B.P. No. 880).

23WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED (1993 Ed)., p. 1836.

24The Local Government Code. Specifically, Section 16 stating the general welfare clause,
thus:

Sec. 16. General Welfare. – Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
 necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support
among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.

25 Respondents’ Consolidated Memorandum, pp. 30-31 (Emphasis supplied by respondents).

26 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006
[G.R. No. L-5060 January 26, 1910]

THE UNITED STATES, plaintiff-appellee,

vs.
LUIS TORIBIO, defendant-appellant.

Rodriguez & Del Rosario, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence of record fully sustains the findings of the trial court that the appellant slaughtered or
caused to be slaughtered for human consumption, the carabao described in the information, without
a permit from the municipal treasure of the municipality wherein it was slaughtered, in violation of the
provisions of sections 30 and 33 of Act No. 1147, an Act regulating the registration, branding, and
slaughter of large cattle.

It appears that in the town of Carmen, in the Province of Bohol, wherein the animal was slaughtered
there is no municipal slaughterhouse, and counsel for appellant contends that under such
circumstances the provisions of Act No. 1147 do not prohibit nor penalize the slaughter of large
cattle without a permit of the municipal treasure. Sections 30, 31, 32, and 33 of the Act are as
follows:

SEC. 30. No large cattle shall be slaughtered or killed for food at the municipal
slaughterhouse except upon permit secured from the municipal treasure. Before issuing the
permit for the slaughter of large cattle for human consumption, the municipal treasurer shall
require for branded cattle the production of the original certificate of ownership and
certificates of transfer showing title in the person applying for the permit, and for unbranded
cattle such evidence as may satisfy said treasurer as to the ownership of the animals for
which permit to slaughter has been requested.

SEC. 31. No permit to slaughter has been carabaos shall be granted by the municipal
treasurer unless such animals are unfit for agricultural work or for draft purposes, and in no
event shall a permit be given to slaughter for food any animal of any kind which is not fit for
human consumption.

SEC. 32. The municipal treasurer shall keep a record of all permits for slaughter issued by
him, and such record shall show the name and residence of the owner, and the class, sex,
age, brands, knots of radiated hair commonly know as remolinos or cowlicks, and other
marks of identification of the animal for the slaughter of which permit is issued and the date
on which such permit is issued. Names of owners shall be alphabetically arranged in the
record, together with date of permit.
 A copy of the record of permits granted for slaughter shall be forwarded monthly to the
provincial treasurer, who shall file and properly index the same under the name of the owner,
together with date of permit.

SEC. 33. Any person slaughtering or causing to be slaughtered for human consumption or
killing for food at the municipal slaughterhouse any large cattle except upon permit duly
secured from the municipal treasurer, shall be punished by a fine of not less than ten nor
more than five hundred pesos, Philippine currency, or by imprisonment for not less than one
month nor more than six months, or by both such fine and imprisonment, in the discretion of
the court.

It is contended that the proper construction of the language of these provisions limits the prohibition
contained in section 30 and the penalty imposed in section 33 to cases (1) of slaughter of large
cattle for human consumption in a municipal slaughter without a permit duly secured from the
municipal treasurer, and (2) cases of killing of large cattle for food in a municipal
slaughterhouse without a permit duly secured from the municipal treasurer; and it is urged that the
municipality of Carmen not being provided with a municipal slaughterhouse, neither the prohibition
nor the penalty is applicable to cases of slaughter of large cattle without a permit in that municipality.

We are of opinion, however, that the prohibition contained in section 30 refers (1) to the slaughter of
large cattle for human consumption, anywhere, without a permit duly secured from the municipal
treasurer, and (2) expressly and specifically to the killing for food of large cattle at a municipal
slaughterhouse without such permit; and that the penalty provided in section 33 applies generally to
the slaughter of large cattle for human consumption, anywhere, without a permit duly secured from
the municipal treasurer, and specifically to the killing for food of large cattle at a municipal
slaughterhouse without such permit.

It may be admitted at once, that the pertinent language of those sections taken by itself and
examined apart from the context fairly admits of two constructions: one whereby the phrase "at the
municipal slaughterhouse" may be taken as limiting and restricting both the word "slaughtered" and
the words "killed for food" in section 30, and the words "slaughtering or causing to be slaughtered for
human consumption" and the words "killing for food" in section 33; and the other whereby the phrase
"at the municipal slaughterhouse" may be taken as limiting and restricting merely the words "killed
for food" and "killing for food" as used in those sections. But upon a reading of the whole Act, and
keeping in mind the manifest and expressed purpose and object of its enactment, it is very clear that
the latter construction is that which should be adopted.

The Act primarily seeks to protect the "large cattle" of the Philippine Islands against theft and to
make easy the recovery and return of such cattle to their proper owners when lost, strayed, or
stolen. To this end it provides an elaborate and compulsory system for the separate branding and
registry of ownership of all such cattle throughout the Islands, whereby owners are enabled readily
and easily to establish their title; it prohibits and invalidates all transfers of large cattle
unaccompanied by certificates of transfer issued by the proper officer in the municipality where the
contract of sale is made; and it provides also for the disposition of thieves or persons unlawfully in
possession, so as to protect the rights of the true owners. All this, manifestly, in order to make it
difficult for any one but the rightful owner of such cattle to retain them in his possession or to dispose
of them to others. But the usefulness of this elaborate and compulsory system of identification,
resting as it does on the official registry of the brands and marks on each separate animal
throughout the Islands, would be largely impaired, if not totally destroyed, if such animals were
requiring proof of ownership and the production of certificates of registry by the person slaughtering
or causing them to be slaughtered, and this especially if the animals were slaughtered privately or in
a clandestine manner outside of a municipal slaughterhouse. Hence, as it would appear, sections 30
and 33 prohibit and penalize the slaughter for human consumption or killing for food at a municipal
slaughterhouse of such animals without a permit issued by the municipal treasurer, and section 32
provides for the keeping of detailed records of all such permits in the office of the municipal and also
of the provincial treasurer.

If, however, the construction be placed on these sections which is contended for by the appellant, it
will readily be seen that all these carefully worked out provisions for the registry and record of the
brands and marks of identification of all large cattle in the Islands would prove in large part abortion,
since thieves and persons unlawfully in possession of such cattle, and naturally would, evade the
provisions of the law by slaughtering them outside of municipal slaughterhouses, and thus enjoy the
fruits of their wrongdoing without exposing themselves to the danger of detection incident to the
bringing of the animals to the public slaughterhouse, where the brands and other identification marks
might be scrutinized and proof of ownership required.

Where the language of a statute is fairly susceptible of two or more constructions, that construction
should be adopted which will most tend to give effect to the manifest intent of the lawmaker and
promote the object for which the statute was enacted, and a construction should be rejected which
would tend to render abortive other provisions of the statute and to defeat the object which the
legislator sought to attain by its enactment. We are of opinion, therefore, that sections 30 and 33 of
the Act prohibit and penalize the slaughtering or causing to be slaughtered for human consumption
of large cattle at any place without the permit provided for in section 30.

It is not essential that an explanation be found for the express prohibition in these sections of the
"killing for food at a municipal slaughterhouse" of such animals, despite the fact that this prohibition
is clearly included in the general prohibition of the slaughter of such animals for human consumption
anywhere; but it is not improbable that the requirement for the issue of a permit in such cases was
expressly and specifically mentioned out of superabundance of precaution, and to avoid all
possibility of misunderstanding in the event that some of the municipalities should be disposed to
modify or vary the general provisions of the law by the passage of local ordinances or regulations for
the control of municipal slaughterhouse.

Similar reasoning applied to the specific provisions of section 31 of the Act leads to the same
conclusion. One of the secondary purposes of the law, as set out in that section, is to prevent the
slaughter for food of carabaos fit for agricultural and draft purposes, and of all animals unfit for
human consumption. A construction which would limit the prohibitions and penalties prescribed in
the statute to the killing of such animals in municipal slaughterhouses, leaving unprohibited and
unpenalized their slaughter outside of such establishments, so manifestly tends to defeat the
purpose and object of the legislator, that unless imperatively demanded by the language of the
statute it should be rejected; and, as we have already indicated, the language of the statute is clearly
susceptible of the construction which we have placed upon it, which tends to make effective the
provisions of this as well as all the other sections of the Act.

It appears that the defendant did in fact apply for a permit to slaughter his carabao, and that it was
denied him on the ground that the animal was not unfit "for agricultural work or for draft purposes."
Counsel for appellant contends that the statute, in so far as it undertakes to penalize the slaughter of
carabaos for human consumption as food, without first obtaining a permit which can not be procured
in the event that the animal is not unfit "for agricultural work or draft purposes," is unconstitutional
and in violation of the terms of section 5 of the Philippine Bill (Act of Congress, July 1, 1902), which
provides that "no law shall be enacted which shall deprive any person of life, liberty, or property
without due process of law."
It is not quite clear from the argument of counsel whether his contention is that this provision of the
statute constitutes a taking of property for public use in the exercise of the right of eminent
domain without providing for the compensation of the owners, or that it is an undue and
unauthorized exercise of the police power of the State. But whatever may be the basis of his
contention, we are of opinion, appropriating, with necessary modifications understood, the language
of that great jurist, Chief Justice Shaw (in the case of Com. vs. Tewksbury, 11 Met., 55, where the
question involved was the constitutionality of a statute prohibiting and penalizing the taking or
carrying away by any person, including the owner, of any stones, gravel, or sand, from any of the
beaches in the town of Chesea,) that the law in question "is not a taking of the property for public
use, within the meaning of the constitution, but is a just and legitimate exercise of the power of the
legislature to regulate and restrain such particular use of the property as would be inconsistent with
or injurious to the rights of the public. All property is acquired and held under the tacit condition that it
shall not be so used as to injure the equal rights of others or greatly impair the public rights and
interest of the community."

It may be conceded that the benificial use and exclusive enjoyment of the property of all carabao
owners in these Islands is to a greater or less degree interfered with by the provisions of the statute;
and that, without inquiring what quantum of interest thus passes from the owners of such cattle, it is
an interest the deprivation of which detracts from their right and authority, and in some degree
interferes with their exclusive possession and control of their property, so that if the regulations in
question were enacted for purely private purpose, the statute, in so far as these regulations are
concerned, would be a violation of the provisions of the Philippine Bill relied on be appellant; but we
are satisfied that it is not such a taking, such an interference with the right and title of the owners, as
is involved in the exercise by the State of the right of eminent domain, so as to entitle these owners
to compensation, and that it is no more than "a just restrain of an injurious private use of the
property, which the legislature had authority to impose."

In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the doctrine laid down in
Com. vs. Tewksbury (supra) was reviewed and affirmed, the same eminent jurist who wrote the
former opinion, in distinguishing the exercise of the right of eminent domain from the exercise of the
sovereign police powers of the State, said:

We think it is settled principle, growing out of the nature of well-ordered civil society, that
every holder of property, however absolute and unqualified may be his title, holds it under
the implied liability that his use of it may be so regulated that is shall not be injurious to the
equal enjoyment of others having an equal right to the enjoyment of their property, nor
injurious to the rights of the community. . . . Rights of property, like all other social and
conventional rights, are subject to such reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restrain and regulations establish
by law, as the legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient.

This is very different from the right of eminent domain, the right of a government to take and
appropriate private property to public use, whenever the public exigency requires it; which
can be done only on condition of providing a reasonable compensation therefor. The power
we allude to is rather the police power, the power vested in the legislature by the constitution,
to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution, as they shall
judge to be for the good and welfare of the commonwealth, and of the subjects of the same.

It is much easier to perceive and realize the existence and sources of this power than to
mark its boundaries or prescribe limits to its exercise.
Applying these principles, we are opinion that the restrain placed by the law on the slaughter for
human consumption of carabaos fit for agricultural work and draft purpose is not an appropriation of
property interests to a "public use," and is not, therefore, within the principle of the exercise by the
State of the right of eminent domain. It is fact a mere restriction or limitation upon a private use,
which the legislature deemed to be determental to the public welfare. And we think that an
examination of the general provisions of the statute in relation to the public interest which it seeks to
safeguard and the public necessities for which it provides, leaves no room for doubt that the
limitations and restraints imposed upon the exercise of rights of ownership by the particular
provisions of the statute under consideration were imposed not for private purposes but, strictly, in
the promotion of the "general welfare" and "the public interest" in the exercise of the sovereign police
power which every State possesses for the general public welfare and which "reaches to every
species of property within the commonwealth."

For several years prior to the enactment of the statute a virulent contagious or infectious disease
had threatened the total extinction of carabaos in these Islands, in many sections sweeping away
seventy, eighty, and in some cases as much as ninety and even one hundred per cent of these
animals. Agriculture being the principal occupation of the people, and the carabao being the work
animal almost exclusively in use in the fields as well as for draft purposes, the ravages of the
disease with which they were infected struck an almost vital blow at the material welfare of the
country. large areas of productive land lay waste for years, and the production of rice, the staple
food of the inhabitants of the Islands, fell off to such an extent that the impoverished people were
compelled to spend many millions of pesos in its importation, notwithstanding the fact that with
sufficient work animals to cultivate the fields the arable rice lands of the country could easily be
made to produce a supply more that sufficient for its own needs. The drain upon the resources of the
Islands was such that famine soon began to make itself felt, hope sank in the breast of the people,
and in many provinces the energies of the breadwinners seemed to be paralyzed by the apparently
hopeless struggle for existence with which they were confronted.

To meet these conditions, large sums of money were expended by the Government in relieving the
immediate needs of the starving people, three millions of dollars were voted by the Congress of the
United States as a relief or famine fund, public works were undertaken to furnish employment in the
provinces where the need was most pressing, and every effort made to alleviate the suffering
incident to the widespread failure of the crops throughout the Islands, due in large measure to the
lack of animals fit for agricultural work and draft purposes.

Such measures, however, could only temporarily relieve the situation, because in an agricultural
community material progress and permanent prosperity could hardly be hoped for in the absence of
the work animals upon which such a community must necessarily rely for the cultivation of the fields
and the transportation of the products of the fields to market. Accordingly efforts were made by the
Government to increase the supply of these animals by importation, but, as appears from the official
reports on this subject, hope for the future depended largely on the conservation of those animals
which had been spared from the ravages of the diseased, and their redistribution throughout the
Islands where the need for them was greatest.

At large expense, the services of experts were employed, with a view to the discovery and
applications of preventive and curative remedies, and it is hoped that these measures have proved
in some degree successful in protecting the present inadequate supply of large cattle, and that the
gradual increase and redistribution of these animals throughout the Archipelago, in response to the
operation of the laws of supply and demand, will ultimately results in practically relieving those
sections which suffered most by the loss of their work animals.
As was to be expected under such conditions, the price of carabaos rapidly increase from the three
to five fold or more, and it may fairly be presumed that even if the conservative measures now
adopted prove entirely successful, the scant supply will keep the price of these animals at a high
figure until the natural increase shall have more nearly equalized the supply to the demand.

Coincident with and probably intimately connected with this sudden rise in the price of cattle, the
crime of cattle stealing became extremely prevalent throughout the Islands, necessitating the
enactment of a special law penalizing with the severest penalties the theft of carabaos and other
personal property by roving bands; and it must be assumed from the legislative authority found that
the general welfare of the Islands necessitated the enactment of special and somewhat burdensome
provisions for the branding and registration of large cattle, and supervision and restriction of their
slaughter for food. It will hardly be questioned that the provisions of the statute touching the branding
and registration of such cattle, and prohibiting and penalizing the slaughter of diseased cattle for
food were enacted in the due and proper exercise of the police power of the State; and we are of
opinion that, under all the circumstances, the provision of the statute prohibiting and penalizing the
slaughter for human consumption of carabaos fit for work were in like manner enacted in the due
and proper exercise of that power, justified by the exigent necessities of existing conditions, and the
right of the State to protect itself against the overwhelming disaster incident to the further reduction
of the supply of animals fit for agricultural work or draft purposes.

It is, we think, a fact of common knowledge in these Islands, and disclosed by the official reports and
records of the administrative and legislative departments of the Government, that not merely the
material welfare and future prosperity of this agricultural community were threatened by the ravages
of the disease which swept away the work animals during the years prior to the enactment of the law
under consideration, but that the very life and existence of the inhabitants of these Islands as a
civilized people would be more or less imperiled by the continued destruction of large cattle by
disease or otherwise. Confronted by such conditions, there can be no doubt of the right of the
Legislature to adopt reasonable measures for the preservation of work animals, even to the extent of
prohibiting and penalizing what would, under ordinary conditions, be a perfectly legitimate and
proper exercise of rights of ownership and control of the private property of the citizen. The police
power rests upon necessity and the right of self-protection and if ever the invasion of private property
by police regulation can be justified, we think that the reasonable restriction placed upon the use of
carabaos by the provision of the law under discussion must be held to be authorized as a
reasonable and proper exercise of that power.

As stated by Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152 U.S., 133, 136):

The extent and limits of what is known as the police power have been a fruitful subject of
discussion in the appellate courts of nearly every State in the Union. It is universally
conceded to include everything essential to the public safely, health, and morals, and to
justify the destruction or abatement, by summary proceedings, of whatever may be regarded
as a public nuisance. Under this power it has been held that the State may order the
destruction of a house falling to decay or otherwise endangering the lives of passers-by; the
demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the
destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities;
the regulation of railways and other means of public conveyance, and of interments in burial
grounds; the restriction of objectionable trades to certain localities; the compulsary
vaccination of children; the confinement of the insane or those afficted with contagious
deceases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of
obscene publications and houses of ill fame; and the prohibition of gambling houses and
places where intoxicating liquors are sold. Beyond this, however, the State may interfere
wherever the public interests demand it, and in this particular a large discretion is necessarily
vested in the legislature to determine, not only what the interests of the public require, but
 what measures are necessary for the protection of such interests. (Barbier vs. Connolly, 113
U. S., 27; Kidd vs. Pearson, 128 U. S., 1.) To justify the State in thus interposing its authority
in behalf of the public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference; and, second, that
the means are reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. The legislature may not, under the guise of protecting the public
interests, arbitrarily interfere with private business, or impose unusual and unnecessary
restrictions upon lawful occupations. In other words, its determination as to what is a proper
exercise of its police powers is not final or conclusive, but is subject to the supervision of the
court.

From what has been said, we think it is clear that the enactment of the provisions of the statute
under consideration was required by "the interests of the public generally, as distinguished from
those of a particular class;" and that the prohibition of the slaughter of carabaos for human
consumption, so long as these animals are fit for agricultural work or draft purposes was a
"reasonably necessary" limitation on private ownership, to protect the community from the loss of the
services of such animals by their slaughter by improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously affected.

Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140), said (p. 149) that
by this "general police power of the State, persons and property are subjected to all kinds of
restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of
the perfect right in the legislature to do which no question ever was, or, upon acknowledge and
general principles, ever can be made, so far as natural persons are concerned."

And Cooley in his "Constitutional Limitations" (6th ed., p. 738) says:

It would be quite impossible to enumerate all the instances in which the police power is or
may be exercised, because the various cases in which the exercise by one individual of his
rights may conflict with a similar exercise by others, or may be detrimental to the public order
or safety, are infinite in number and in variety. And there are other cases where it becomes
necessary for the public authorities to interfere with the control by individuals of their
property, and even to destroy it, where the owners themselves have fully observed all their
duties to their fellows and to the State, but where, nevertheless, some controlling public
necessity demands the interference or destruction. A strong instance of this description is
where it becomes necessary to take, use, or destroy the private property of individuals to
prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or
any other great public calamity. Here the individual is in no degree in fault, but his interest
must yield to that "necessity" which "knows no law." The establishment of limits within the
denser portions of cities and villages within which buildings constructed of inflammable
materials shall not be erected or repaired may also, in some cases, be equivalent to a
destruction of private property; but regulations for this purpose have been sustained
notwithstanding this result. Wharf lines may also be established for the general good, even
though they prevent the owners of water-fronts from building out on soil which constitutes
private property. And, whenever the legislature deem it necessary to the protection of a
harbor to forbid the removal of stones, gravel, or sand from the beach, they may establish
regulations to that effect under penalties, and make them applicable to the owners of the soil
equally with other persons. Such regulations are only "a just restraint of an injurious use of
property, which the legislature have authority" to impose.
 So a particular use of property may sometimes be forbidden, where, by a change of
circumstances, and without the fault of the power, that which was once lawful, proper, and
unobjectionable has now become a public nuisance, endangering the public health or the
public safety. Milldams are sometimes destroyed upon this grounds; and churchyards which
prove, in the advance of urban population, to be detrimental to the public health, or in danger
of becoming so, are liable to be closed against further use for cemetery purposes.

These citations from some of the highest judicial and text-book authorities in the United States
clearly indicate the wide scope and extent which has there been given to the doctrine us in our
opinion that the provision of the statute in question being a proper exercise of that power is not in
violation of the terms of section 5 of the Philippine Bill, which provide that "no law shall be enacted
which shall deprive any person of life, liberty, or property without due process of law," a provision
which itself is adopted from the Constitution of the United States, and is found in substance in the
constitution of most if not all of the States of the Union.

The judgment of conviction and the sentence imposed by the trial court should be affirmed with the
costs of this instance against the appellant. So ordered.

Arellano, C.J., Torres, Johnson, Moreland and Elliott, JJ., concur.

[G.R. No. L-18841 January 27, 1969]

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, defendant-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and
Solicitor Camilo D. Quiason for plaintiff-appellant.
Ponce Enrile, Siguion Reyna, Montecillo and Belo for defendant-appellant.

REYES, J.B.L., J.:

Direct appeals, upon a joint record on appeal, by both the plaintiff and the defendant from the
dismissal, after hearing, by the Court of First Instance of Manila, in its Civil Case No. 35805, of their
respective complaint and counterclaims, but making permanent a preliminary mandatory injunction
theretofore issued against the defendant on the interconnection of telephone facilities owned and
operated by said parties.

The plaintiff, Republic of the Philippines, is a political entity exercising governmental powers
through its branches and instrumentalities, one of which is the Bureau of Telecommunications. That
office was created on 1 July 1947, under Executive Order No. 94, with the following powers and
duties, in addition to certain powers and duties formerly vested in the Director of Posts: 1aw phil.ñêt

SEC. 79. The Bureau of Telecommunications shall exercise the following powers and duties:

(a) To operate and maintain existing wire-telegraph and radio-telegraph offices, stations, and
facilities, and those to be established to restore the pre-war telecommunication service under
the Bureau of Posts, as well as such additional offices or stations as may hereafter be
established to provide telecommunication service in places requiring such service;
 (b) To investigate, consolidate, negotiate for, operate and maintain wire-telephone or radio
telephone communication service throughout the Philippines by utilizing such existing
facilities in cities, towns, and provinces as may be found feasible and under such terms and
conditions or arrangements with the present owners or operators thereof as may be agreed
upon to the satisfaction of all concerned;

(c) To prescribe, subject to approval by the Department Head, equitable rates of charges for
messages handled by the system and/or for time calls and other services that may be
rendered by said system;

(d) To establish and maintain coastal stations to serve ships at sea or aircrafts and, when
public interest so requires, to engage in the international telecommunication service in
agreement with other countries desiring to establish such service with the Republic of the
Philippines; and

(e) To abide by all existing rules and regulations prescribed by the International
Telecommunication Convention relative to the accounting, disposition and exchange of
messages handled in the international service, and those that may hereafter be promulgated
by said convention and adhered to by the Government of the Republic of the Philippines. 1

The defendant, Philippine Long Distance Telephone Company (PLDT for short), is a public service
corporation holding a legislative franchise, Act 3426, as amended by Commonwealth Act 407, to
install, operate and maintain a telephone system throughout the Philippines and to carry on the
business of electrical transmission of messages within the Philippines and between the Philippines
and the telephone systems of other countries. 2 The RCA Communications, Inc., (which is not a party
to the present case but has contractual relations with the parties) is an American corporation
authorized to transact business in the Philippines and is the grantee, by assignment, of a legislative
franchise to operate a domestic station for the reception and transmission of long distance wireless
messages (Act 2178) and to operate broadcasting and radio-telephone and radio-telegraphic
communications services (Act 3180). 3

Sometime in 1933, the defendant, PLDT, and the RCA Communications, Inc., entered into an
agreement whereby telephone messages, coming from the United States and received by RCA's
domestic station, could automatically be transferred to the lines of PLDT; and vice-versa, for calls
collected by the PLDT for transmission from the Philippines to the United States. The contracting
parties agreed to divide the tolls, as follows: 25% to PLDT and 75% to RCA. The sharing was
amended in 1941 to 30% for PLDT and 70% for RCA, and again amended in 1947 to a 50-50 basis.
The arrangement was later extended to radio-telephone messages to and from European and
Asiatic countries. Their contract contained a stipulation that either party could terminate it on a 24-
month notice to the other.4 On 2 February 1956, PLDT gave notice to RCA to terminate their contract
on 2 February 1958. 5

Soon after its creation in 1947, the Bureau of Telecommunications set up its own Government
Telephone System by utilizing its own appropriation and equipment and by renting trunk lines of the
PLDT to enable government offices to call private parties. 6 Its application for the use of these trunk
lines was in the usual form of applications for telephone service, containing a statement, above the
signature of the applicant, that the latter will abide by the rules and regulations of the PLDT which
are on file with the Public Service Commission. 7 One of the many rules prohibits the public use of the
service furnished the telephone subscriber for his private use. 8 The Bureau has extended its
services to the general public since 1948, 9 using the same trunk lines owned by, and rented from,
the PLDT, and prescribing its (the Bureau's) own schedule of rates. 10 Through these trunk lines, a
Government Telephone System (GTS) subscriber could make a call to a PLDT subscriber in the
same way that the latter could make a call to the former.

On 5 March 1958, the plaintiff, through the Director of Telecommunications, entered into an
agreement with RCA Communications, Inc., for a joint overseas telephone service whereby the
Bureau would convey radio-telephone overseas calls received by RCA's station to and from local
residents. 11 Actually, they inaugurated this joint operation on 2 February 1958, under a "provisional"
agreement. 12

On 7 April 1958, the defendant Philippine Long Distance Telephone Company, complained to the
Bureau of Telecommunications that said bureau was violating the conditions under which their
Private Branch Exchange (PBX) is inter-connected with the PLDT's facilities, referring to the rented
trunk lines, for the Bureau had used the trunk lines not only for the use of government offices but
even to serve private persons or the general public, in competition with the business of the PLDT;
and gave notice that if said violations were not stopped by midnight of 12 April 1958, the PLDT
would sever the telephone connections. 13 When the PLDT received no reply, it disconnected the
trunk lines being rented by the Bureau at midnight on 12 April 1958. 14 The result was the isolation of
the Philippines, on telephone services, from the rest of the world, except the United States. 15

At that time, the Bureau was maintaining 5,000 telephones and had 5,000 pending applications for
telephone connection. 16 The PLDT was also maintaining 60,000 telephones and had also 20,000
pending applications. 17Through the years, neither of them has been able to fill up the demand for
telephone service.

The Bureau of Telecommunications had proposed to the PLDT on 8 January 1958 that both enter
into an interconnecting agreement, with the government paying (on a call basis) for all calls passing
through the interconnecting facilities from the Government Telephone System to the PLDT. 18 The
PLDT replied that it was willing to enter into an agreement on overseas telephone service to Europe
and Asian countries provided that the Bureau would submit to the jurisdiction and regulations of the
Public Service Commission and in consideration of 37 1/2% of the gross revenues. 19 In its
memorandum in lieu of oral argument in this Court dated 9 February 1964, on page 8, the defendant
reduced its offer to 33 1/3 % (1/3) as its share in the overseas telephone service. The proposals
were not accepted by either party.

On 12 April 1958, plaintiff Republic commenced suit against the defendant, Philippine Long
Distance Telephone Company, in the Court of First Instance of Manila (Civil Case No. 35805),
praying in its complaint for judgment commanding the PLDT to execute a contract with plaintiff,
through the Bureau, for the use of the facilities of defendant's telephone system throughout the
Philippines under such terms and conditions as the court might consider reasonable, and for a writ of
preliminary injunction against the defendant company to restrain the severance of the existing
telephone connections and/or restore those severed.

Acting on the application of the plaintiff, and on the ground that the severance of telephone
connections by the defendant company would isolate the Philippines from other countries, the court
a quo, on 14 April 1958, issued an order for the defendant:

(1) to forthwith reconnect and restore the seventy-eight (78) trunk lines that it has
disconnected between the facilities of the Government Telephone System, including its
overseas telephone services, and the facilities of defendant; (2) to refrain from carrying into
effect its threat to sever the existing telephone communication between the Bureau of
Telecommunications and defendant, and not to make connection over its telephone system
of telephone calls coming to the Philippines from foreign countries through the said Bureau's
 telephone facilities and the radio facilities of RCA Communications, Inc.; and (3) to accept
and connect through its telephone system all such telephone calls coming to the Philippines
from foreign countries — until further order of this Court.

On 28 April 1958, the defendant company filed its answer, with counterclaims.

It denied any obligation on its part to execute a contrary of services with the Bureau of
Telecommunications; contested the jurisdiction of the Court of First Instance to compel it to enter
into interconnecting agreements, and averred that it was justified to disconnect the trunk lines
heretofore leased to the Bureau of Telecommunications under the existing agreement because its
facilities were being used in fraud of its rights. PLDT further claimed that the Bureau was engaging in
commercial telephone operations in excess of authority, in competition with, and to the prejudice of,
the PLDT, using defendants own telephone poles, without proper accounting of revenues.

After trial, the lower court rendered judgment that it could not compel the PLDT to enter into an
agreement with the Bureau because the parties were not in agreement; that under Executive Order
94, establishing the Bureau of Telecommunications, said Bureau was not limited to servicing
government offices alone, nor was there any in the contract of lease of the trunk lines, since the
PLDT knew, or ought to have known, at the time that their use by the Bureau was to be public
throughout the Islands, hence the Bureau was neither guilty of fraud, abuse, or misuse of the poles
of the PLDT; and, in view of serious public prejudice that would result from the disconnection of the
trunk lines, declared the preliminary injunction permanent, although it dismissed both the complaint
and the counterclaims.

Both parties appealed.

Taking up first the appeal of the Republic, the latter complains of the action of the trial court in
dismissing the part of its complaint seeking to compel the defendant to enter into an interconnecting
contract with it, because the parties could not agree on the terms and conditions of the
interconnection, and of its refusal to fix the terms and conditions therefor.

We agree with the court below that parties can not be coerced to enter into a contract where no
agreement is had between them as to the principal terms and conditions of the contract. Freedom to
stipulate such terms and conditions is of the essence of our contractual system, and by express
provision of the statute, a contract may be annulled if tainted by violence, intimidation, or undue
influence (Articles 1306, 1336, 1337, Civil Code of the Philippines). But the court a quo has
apparently overlooked that while the Republic may not compel the PLDT to celebrate a contract with
it, the Republic may, in the exercise of the sovereign power of eminent domain, require the
telephone company to permit interconnection of the government telephone system and that of the
PLDT, as the needs of the government service may require, subject to the payment of just
compensation to be determined by the court. Nominally, of course, the power of eminent domain
results in the taking or appropriation of title to, and possession of, the expropriated property; but no
cogent reason appears why the said power may not be availed of to impose only a burden upon the
owner of condemned property, without loss of title and possession. It is unquestionable that real
property may, through expropriation, be subjected to an easement of right of way. The use of the
PLDT's lines and services to allow inter-service connection between both telephone systems is not
much different. In either case private property is subjected to a burden for public use and benefit. If,
under section 6, Article XIII, of the Constitution, the State may, in the interest of national welfare,
transfer utilities to public ownership upon payment of just compensation, there is no reason why the
State may not require a public utility to render services in the general interest, provided just
compensation is paid therefor. Ultimately, the beneficiary of the interconnecting service would be the
users of both telephone systems, so that the condemnation would be for public use.
 The Bureau of Telecommunications, under section 78 (b) of Executive Order No. 94, may operate
and maintain wire telephone or radio telephone communications throughout the Philippines by
utilizing existing facilities in cities, towns, and provinces under such terms and conditions or
arrangement with present owners or operators as may be agreed upon to the satisfaction of all
concerned; but there is nothing in this section that would exclude resort to condemnation
proceedings where unreasonable or unjust terms and conditions are exacted, to the extent of
crippling or seriously hampering the operations of said Bureau.

A perusal of the complaint shows that the Republic's cause of action is predicated upon the radio
telephonic isolation of the Bureau's facilities from the outside world if the severance of
interconnection were to be carried out by the PLDT, thereby preventing the Bureau of
Telecommunications from properly discharging its functions, to the prejudice of the general public.
Save for the prayer to compel the PLDT to enter into a contract (and the prayer is no essential part
of the pleading), the averments make out a case for compulsory rendering of inter-connecting
services by the telephone company upon such terms and conditions as the court may determine to
be just. And since the lower court found that both parties "are practically at one that defendant
(PLDT) is entitled to reasonable compensation from plaintiff for the reasonable use of the former's
telephone facilities" (Decision, Record on Appeal, page 224), the lower court should have proceeded
to treat the case as one of condemnation of such services independently of contract and proceeded
to determine the just and reasonable compensation for the same, instead of dismissing the petition.

This view we have taken of the true nature of the Republic's petition necessarily results in
overruling the plea of defendant-appellant PLDT that the court of first instance had no jurisdiction to
entertain the petition and that the proper forum for the action was the Public Service Commission.
That body, under the law, has no authority to pass upon actions for the taking of private property
under the sovereign right of eminent domain. Furthermore, while the defendant telephone company
is a public utility corporation whose franchise, equipment and other properties are under the
jurisdiction, supervision and control of the Public Service Commission (Sec. 13, Public Service Act),
yet the plaintiff's telecommunications network is a public service owned by the Republic and
operated by an instrumentality of the National Government, hence exempt, under Section 14 of the
Public Service Act, from such jurisdiction, supervision and control. The Bureau of
Telecommunications was created in pursuance of a state policy reorganizing the government offices
—

to meet the exigencies attendant upon the establishment of the free and independent
Government of the Republic of the Philippines, and for the purpose of promoting simplicity,
economy and efficiency in its operation (Section 1, Republic Act No. 51) —

and the determination of state policy is not vested in the Commission (Utilities Com. vs. Bartonville
Bus Line, 290 Ill. 574; 124 N.E. 373).

Defendant PLDT, as appellant, contends that the court below was in error in not holding that the
Bureau of Telecommunications was not empowered to engage in commercial telephone business,
and in ruling that said defendant was not justified in disconnecting the telephone trunk lines it had
previously leased to the Bureau. We find that the court a quo ruled correctly in rejecting both
assertions.

Executive Order No. 94, Series of 1947, reorganizing the Bureau of Telecommunications, expressly
empowered the latter in its Section 79, subsection (b), to "negotiate for, operate and maintain wire
telephone or radio telephone communication service throughout the Philippines", and, in subsection
(c), "to prescribe, subject to approval by the Department Head, equitable rates of charges for
messages handled by the system and/or for time calls and other services that may be rendered by
the system". Nothing in these provisions limits the Bureau to non-commercial activities or prevents it
from serving the general public. It may be that in its original prospectuses the Bureau officials had
stated that the service would be limited to government offices: but such limitations could not block
future expansion of the system, as authorized by the terms of the Executive Order, nor could the
officials of the Bureau bind the Government not to engage in services that are authorized by law. It is
a well-known rule that erroneous application and enforcement of the law by public officers do not
block subsequent correct application of the statute (PLDT vs. Collector of Internal Revenue, 90 Phil.
676), and that the Government is never estopped by mistake or error on the part of its agents
(Pineda vs. Court of First Instance of Tayabas, 52 Phil. 803, 807; Benguet Consolidated Mining Co.
vs. Pineda, 98 Phil. 711, 724).

The theses that the Bureau's commercial services constituted unfair competition, and that the
Bureau was guilty of fraud and abuse under its contract, are, likewise, untenable.

First, the competition is merely hypothetical, the demand for telephone service being very much
more than the supposed competitors can supply. As previously noted, the PLDT had 20,000 pending
applications at the time, and the Bureau had another 5,000. The telephone company's inability to
meet the demands for service are notorious even now. Second, the charter of the defendant
expressly provides:

SEC. 14. The rights herein granted shall not be exclusive, and the rights and power to grant
to any corporation, association or person other than the grantee franchise for the telephone
or electrical transmission of message or signals shall not be impaired or affected by the
granting of this franchise: — (Act 3436)

And third, as the trial court correctly stated, "when the Bureau of Telecommunications subscribed to
the trunk lines, defendant knew or should have known that their use by the subscriber was more or
less public and all embracing in nature, that is, throughout the Philippines, if not abroad" (Decision,
Record on Appeal, page 216).

The acceptance by the defendant of the payment of rentals, despite its knowledge that the plaintiff
had extended the use of the trunk lines to commercial purposes, continuously since 1948, implies
assent by the defendant to such extended use. Since this relationship has been maintained for a
long time and the public has patronized both telephone systems, and their interconnection is to the
public convenience, it is too late for the defendant to claim misuse of its facilities, and it is not now at
liberty to unilaterally sever the physical connection of the trunk lines.

..., but there is high authority for the position that, when such physical connection has been
voluntarily made, under a fair and workable arrangement and guaranteed by contract and the
continuous line has come to be patronized and established as a great public convenience,
such connection shall not in breach of the agreement be severed by one of the parties. In
that case, the public is held to have such an interest in the arrangement that its rights must
receive due consideration. This position finds approval in State ex rel. vs. Cadwaller, 172
Ind. 619, 636, 87 N.E. 650, and is stated in the elaborate and learned opinion of Chief
Justice Myers as follows: "Such physical connection cannot be required as of right, but if
such connection is voluntarily made by contract, as is here alleged to be the case, so that the
public acquires an interest in its continuance, the act of the parties in making such
connection is equivalent to a declaration of a purpose to waive the primary right of
independence, and it imposes upon the property such a public status that it may not be
disregarded" — citing Mahan v. Mich. Tel. Co., 132 Mich. 242, 93 N.W. 629, and the reasons
upon which it is in part made to rest are referred to in the same opinion, as follows: "Where
private property is by the consent of the owner invested with a public interest or privilege for
 the benefit of the public, the owner can no longer deal with it as private property only, but
must hold it subject to the right of the public in the exercise of that public interest or privilege
conferred for their benefit." Allnut v. Inglis (1810) 12 East, 527. The doctrine of this early
case is the acknowledged law. (Clinton-Dunn Tel. Co. v. Carolina Tel. & Tel. Co., 74 S.E.
636, 638).

It is clear that the main reason for the objection of the PLDT lies in the fact that said appellant did
not expect that the Bureau's telephone system would expand with such rapidity as it has done; but
this expansion is no ground for the discontinuance of the service agreed upon.

The last issue urged by the PLDT as appellant is its right to compensation for the use of its poles
for bearing telephone wires of the Bureau of Telecommunications. Admitting that section 19 of the
PLDT charter reserves to the Government —

the privilege without compensation of using the poles of the grantee to attach one ten-pin
cross-arm, and to install, maintain and operate wires of its telegraph system
thereon; Provided, however, That the Bureau of Posts shall have the right to place additional
cross-arms and wires on the poles of the grantee by paying a compensation, the rate of
which is to be agreed upon by the Director of Posts and the grantee; —

the defendant counterclaimed for P8,772.00 for the use of its poles by the plaintiff, contending that
what was allowed free use, under the aforequoted provision, was one ten-pin cross-arm attachment
and only for plaintiff's telegraph system, not for its telephone system; that said section could not refer
to the plaintiff's telephone system, because it did not have such telephone system when defendant
acquired its franchise. The implication of the argument is that plaintiff has to pay for the use of
defendant's poles if such use is for plaintiff's telephone system and has to pay also if it attaches
more than one (1) ten-pin cross-arm for telegraphic purposes.

As there is no proof that the telephone wires strain the poles of the PLDT more than the telegraph
wires, nor that they cause more damage than the wires of the telegraph system, or that the
Government has attached to the poles more than one ten-pin cross-arm as permitted by the PLDT
charter, we see no point in this assignment of error. So long as the burden to be borne by the PLDT
poles is not increased, we see no reason why the reservation in favor of the telegraph wires of the
government should not be extended to its telephone lines, any time that the government decided to
engage also in this kind of communication.

In the ultimate analysis, the true objection of the PLDT to continue the link between its network and
that of the Government is that the latter competes "parasitically" (sic) with its own telephone
services. Considering, however, that the PLDT franchise is non-exclusive; that it is well-known that
defendant PLDT is unable to adequately cope with the current demands for telephone service, as
shown by the number of pending applications therefor; and that the PLDT's right to just
compensation for the services rendered to the Government telephone system and its users is herein
recognized and preserved, the objections of defendant-appellant are without merit. To uphold the
PLDT's contention is to subordinate the needs of the general public to the right of the PLDT to derive
profit from the future expansion of its services under its non-exclusive franchise.

WHEREFORE, the decision of the Court of First Instance, now under appeal, is affirmed, except in
so far as it dismisses the petition of the Republic of the Philippines to compel the Philippine Long
Distance Telephone Company to continue servicing the Government telephone system upon such
terms, and for a compensation, that the trial court may determine to be just, including the period
elapsed from the filing of the original complaint or petition. And for this purpose, the records are
ordered returned to the court of origin for further hearings and other proceedings not inconsistent
with this opinion. No costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee
and Barredo, JJ., concur.

Footnotes

1 Stipulated by parties (Record on Appeal, pages 70-72).

2 Ibid.

3 Ibid.

4 Exhibit "Q", folder of exhibits, pages 1-2, 11, 66-67, 69, 72-73, 82-83, 88.

5 T.s.n., 26 January 1959, page 11.

6 Exhibit "12-A".

7 Partial Stipulation of Facts and its Annex "D", record on appeal, pages 72, 134-135.

8 Exhibit "16", page 49.

9 T.s.n., 9 March 1960, page 9.

10 T.s.n., 9 March 1960, page 57.

11 Annex "M" to Partial Stipulation of Facts, record on appeal, page 164-177.

12 T.s.n., 9 March 1960, pages 30-31.

13
Annex "P", record on appeal, pages 184-186.

14 Partial Stipulation of Facts, record on appeal page 78.

15 Decision, record on appeal, pages 221-222.

Decision, record on appeal, page 211; Exhibit "3", record of exhibits, page 103; T.s.n., 9
16

March 1960, pages 56 and 59.

17 Ibid.

18 Partial Stipulation of Facts, record on appeal, page 72.

19 Partial Stipulation of Facts, record on appeal, page 77.

[G.R. No. L-51078 October 30, 1980]

CRISTINA DE KNECHT, petitioner,

vs.
HON. PEDRO JL. BAUTISTA, as Judge presiding over Branch III of the Court of First Instance
(Pasay City) and the REPUBLIC OF THE PHILIPPINES, respondents.
FERNANDEZ, J.:

This is a petition for certiorari and prohibition filed by Cristina de Knecht against the Honorable
Pedro JL. Bautista, as Judge presiding over Branch III of the Court of First Instance of Rizal (Pasay
City), and the Republic of the Philippines pines seeking the following relief:

WHEREFORE, petitioner respectfully prays that judgment be rendered annulling the

order for immediate possession issued by respondent court in the expropriation
proceedings and commanding respondents to desist from further proceedings in the
expropriation action or the order for immediate possession issued in said action, with
costs.

Petitioner prays that a restraint order or writ of preliminary injunction be issued ex-
parte enjoining respondents, their representative representative and agents from
enforcing the here questioned order for mediate posession petitioner offering to post
a bond executed to the parties enjoined in an amount to be fixed by the Court to the
effect that she will pay to such parties all damages which they may sustain by reason
of the injunction if the Court should finally decide she is not entitled there

She prays for such other remedy as the Court may deem just and equitable in the
premises.

Quezon City for July 1979. 1

The petitioner alleges that than ten (10) years ago, the government through the Department of
Public Workmen's and Communication (now MPH) prepared a to Epifanio de los Santos Avenue
(EDSA) to Roxas Boulevard; that the proposed extension, an adjunct of building program, the Manila
— Cavite Coastal Read Project, would pass through Cuneta Avenue up to Roxas Boulevard that this
route would be a straight one taking into account the direction of EDSA; that preparation to the
implementation of the aforesaid plan, or on December 13, 1974, then Secretary Baltazar Aquino of
the Department of Public Highways directed the City Engineer of Pasay City not to issue temporary
or permanent permits for the construction and/or improvement of buildings and other structures
located within the proposed extension through Cuneta Avenue that shortly thereafter the Department
of Public Highways decided to make the proposed extension go through Fernando Rein and Del Pan
Streets which are lined with old substantial houses; that upon learning of the changed the owners of
the residential houses that would be affected, the herein petitioner being one of them, filed on April
15, 1977 a formal petition to President Ferdinand E. Marcos asking him to order the Ministry of
Public Highways to adoption, the original plan of making the extension of EDSA through Araneta
Avenue instead of the new plan going through Fernando Rein and Del Pan Streets; that President
Marcos directed then Minister Baltazar Aquino to explain within twenty-four (24) hours why the
proposed project should not be suspended; that on April 21, 1977 then Minister Aquino submitted his
explanation defending the new proposed route; that the President then referred the matter to the
Human Settlements Commission for investigation and recommendation; that after formal hearings to
which all the parties proponents and oppositors were given full opportunity to ventilate their views
and to present their evidence, the Settlements Commission submitted a report recommending the
reversion of the extension of EDSA to the original plan passing through Cuneta Avenue; and that
notwithstanding the said report and recommendation, the Ministry of Public Highways insisted on
implementing the plan to make the extension of EDSA go through Fernando Rein and Del Pan
Streets. 2
In February 1979, the government filed in the Court of First Instance of Rizal, Branch III, Pascual
City presided by the respondent Judge, a complaint for expropriation against the owners of the
houses standing along Fernando Rein and Del Pan Streets, among them the herein petitioner. The
complaint was docketed as Civil Case No. 7001-P and entitled "Republic of the Philippines vs.
Concepcion Cabarrus Vda. de Santos, etc."

The herein petitioner filed a motion to dismiss dated March 19, 1979 on the following grounds:

(a) court had no jurisdiction over the subject matter of the action because the complaint failed to
allege that the instant project for expropriation bore the approval of the Ministry of Human
Settlements and the Metro Manila Government nor pursuant to Presidential Decrees Nos. 824, 1396
and 1517;

(b) The choice of properties to be expropriated made by the Ministry of Public Highways was
arbitrary and erroneous;

(c) The complaint was premature as the plaintiff never really had gone through serious negotiations
with the defendant for the purchase of her property; and

(d) The complaint relied on an arbitrary and erroneous valuation of properties and disregarded
consequential damages.

An urgent motion dated March 28, 1979 for preliminary junction was also filed.

In June 1979 the Republic of the Philippines filed a motion for the issuance of a writ of possession of
the property sought to be expropriated on the ground that said Republic had made the required
deposit with the Philippine National Bank.

The respondent judge issued a writ of possession dated June 14, 1979 authorizing the Republic of
the Philippines to take and enter upon the possession of the properties sought be condemned. 3

The petitioner contends that "Respondent court lacked or exceeded its jurisdiction or gravely abused
its discretion in issuing the order to take over and enter upon the possession of the properties sought
to be expropriated-petitioner having raised a constitutional question which respondent court must
resolve before it can issue an order to take or enter upon the possession of properties sought to be
expropriated." 4

The petitioner assails the choice of the Fernando Rein and Del Pan Streets route on the following
grounds:

The choice of property to be expropriated cannot be without rhyme or reason. The

condemnor may not choose any property it wants. Where the legislature has
delegated a power of eminent do-main, the question of the necessity for taking a
particular fine for the intended improvement rests in the discretion of the grantee
power subject however to review by the courts in case of fraud, bad faith or gross
abuse of discretion. The choice of property must be examined for bad faith,
arbitrariness or capriciousness and due process determination as to whether or not
the proposed location was proper in terms of the public interests. Even the claim of
respondent's Secretary Baltazar Aquino that there would be a saving of P2 million
under his new plan must be reviewed for it bears no relation to the site of the
proposed EDSA extension As envisioned by the government, the EDSA extension
 would be linked to the Cavite Expressway. Logically then, the proposed extension
must point to the south and not detour to the north.

Also, the equal protection of the law must be accorded, not on to the motel owners
along Cuneta (Fisher) Avenue, but also to the owners of solid and substantial homes
and quality residential lands occupied for generations. 5

The respondents maintain that the respondent court did not act without jurisdiction or exceed its
jurisdiction or gravel abuse its discretion in issuing the order dated June 14, 1979 authorizing the
Republic of the Philippines to take over and enter the possession of the properties sought to be
appropriated because the Republic has complied with all the statutory requirements which entitled it
to have immediate possession of the properties involved. 6

Defending the change of the EDSA extension to pass through Fernando Rein — Del Pan Streets,
the respondents aver:

'There was no sudden change of plan in the selection of the site of the EDSA
Extension to Roxas Blvd. As a matter of fact, when the Ministry of Public Highways
decided to change the site of EDSA Ex- tension to Roxas Boulevard from Cuneta
Avenue to the Del Pan — Fernando Item Streets the residents of Del Pan and
Fernando Rein Streets who were to be adversely affected by the construction of ED
— SA Extension to Roxas Boulevard along Del Pan - Fernando Rein Streets were
duly notified of such proposed project. Petitioner herein was one of those notified
Annex 1). It be conceded that the Cuneta Avenue line goes southward and outward
(from the city center while the Del Pan — Fernando Rein Streets line follows
northward and inward direction. It must be stated that both lines, Cuneta Avenue and
Del Pan — Fernando Rein Streets lines, meet satisfactorily planning and design
criteria and therefore are both acceptable. In selecting the Del Pan — Fernando Rein
Streets line the Government did not do so because it wanted to save the motel
located along Cuneta Avenue but because it wanted to minimize the social impact
factor or problem involved. 7

There is no question as to the right of the Republic of the Philippines to take private property for
public use upon the payment of just compensation. Section 2, Article IV of the Constitution of the
Philippines provides: "Private property shall not be taken for public use without just compensation."

It is recognized, was, that the government may not capriciously or arbitrarily' choose what private
property should be taken. In J. M. Tuazon & Co., Inc. vs. Land Tenure administration 31 SCRA, 413,
433, the Supreme Court said:

For the purpose of obtaining a judicial declaration of nullity, it is enough if the

respondents or defendants named be the government officials who would give
operation and effect to official action allegedly tainted with unconstitutionality. Thus,
where the statute assailed was sought to be enforced by the Land Tenure
Administrative and the Solicitor General, the two officials may be made respondents
in the action without need of including the Executive Secretary as a party in the
action

The failure to meet tile exacting standard of due process would likewise constitute a
valid objection to the exercise of this congressional power. That was so intimated in
the above leading Guido Case. There was an earlier pronouncement to that effect in
a decision rendered long before the adoption of the Constitution under the previous
 organic law then in force, while the Philippines was still an unincorporated territory of
the United States.

It is obvious then that a landowner is covered by the mantle of protection due

process affords. It is a mandate of reason. It frowns on arbitrariness, it is the
antithesis of any governmental act that smacks of whim or caprice. It negates state
power to act in an impressive manner. It is, as had been stressed so often, the
embodiment of the sporting Idea of fair play. In that sense, it stands as a guaranty of
justice. That is the standard that must be met by any government talk agency in the
exercise of whatever competence is entrusted to it. As was so emphatically stressed
by the present Chief Justice, 'Acts of Congress, as well as those of the Executive,
can deny due process only under pain of nullity, ...

In the same case the Supreme Court concluded:

With due recognition then of the power of Congress to designate the particular
property to be taken and how much thereof may be condemned in the exercise of the
power of expropriation, it is still a judicial question whether in the exercise of such
competence, the party adversely affected is the victim of partiality and prejudice.
That the equal protection clause will not allow. (p. 436)

In the instant case, it is a fact that the Department of Public Highways originally establish the
extension of EDSA along Cuneta Avenue. It is to be presumed that the Department of Public
Highways made studies before deciding on Cuneta Avenue. It is indeed odd why suddenly the
proposed extension of EDSA to Roxas Boulevard was changed to go through Fernando Rein-Del
Pan Streets which the Solicitor General con- cedes "... the Del Pan — Fernando Rein Streets line
follows northward and inward direction. While admit "that both lines, Cuneta Avenue and Del Pan —
Fernando Rein Streets lines, meet satisfactorily planning and design criteria and therefore are both
acceptable ... the Solicitor General justifies the change to Del Pan — Fernando Rein Streets on the
ground that the government "wanted to the social impact factor or problem involved." 8

It is doubtful whether the extension of EDSA along Cuneta Avenue can be objected to on the ground
of social impact. The improvements and buildings along Cuneta Avenue to be affected by the
extension are mostly motels. Even granting, arguendo, that more people be affected, the Human
Setlements Commission has suggested coordinative efforts of said Commission with the National
Housing Authority and other government agencies in the relocation and resettlement of those
adversely affected. 9

The Human Settlements Commission considered conditionality social impact and cost. The pertinent
portion of its report reads:

Comparison of Alignment 1 (Cuneta Fisher) and Alignment 2 (Del Pan — Fernando

Rein) based on the criteria of functionality, social impact and cost

A. Functionality

This issue has to do with the physical design of a highway, inclusive of engineering
factors and management consideration

From both engineering and traffic management viewpoints, it is incontestable that the
straighter and shorter alignment is preferable to one which is not. Systematically and
diagramatically, alignment 1 is straighter than alignment 2. In fact, Director Antonio
 Goco of the Department of Public Highways admitted that alignment 2 is three (3)
meters longer than alignment 1. Furthermore, alignment 1 is definitely the contour
conforming alignment to EDSA whereas alignment 2 affords a greater radius of
unnatural curvature as it hooks slightly northward before finally joining with Roxas
Boulevard. Besides, whichever alignment is adopted, there will be a need for a grade
separator or interchange at the Roxas Boulevard junction. From the of highway
design, it is imperative to have interchanges as far apart as possible to avoid traffic
from slow down in negotiating the slope on the interchanges. Up north would be the
future Buendia Avenue- Roxas Boulevard Interchange. Consequently, alignment 1
which is farther away from Buendia Avenue than alignment 2 is the better alignment
from the viewpoint of the construction of the grade separator or interchange, a
necessary corollary to the extension project. Finally, the choice of alignment 2 which
is longer by three (3) meters than alignment 1 could have serious repercussions on
our energy conservation drive and from the larger perspective of the national
economy, considering that, by ad- statistical data, no less than fifty thousand
(50,000) vehicles a day will have to traverse an extra three (3) meters.

B. Social Impact

The following factual data which have a direct bearing on the issue of social impact
were culled from the records of the case and the evidence presented during the
public hearings:

(1) Number of property owners:

Alignment 1 73

Alignment 2 49

(2) Incidence of non-resident owner:

Alignment 1 25 (34.3%)

Alignment 2 31 (63.3%)

(3) Number of actually affected residents:

Alignment 1 547

Alignment 2 290 (estimated)

(4) Average income of residents:

Alignment 2:

Below P350 P350 – P500 P 500 – P 800 P800 – Pl000 Over P1000 16 (28%) 24
(42%) 0 (14%) 5 (9%) 4 (7%)

Alignment 2: Figures not available.

It is evident from the foregoing figures that social impact is greater on the residents of
alignment 1.
C. Cost

The resolution of the issue of right-of-way acquisition cost depends to a large extend
on the nature of the properties to be affected and the relative value thereof. A
comparison of alignment 1 and alignment 2 on these two points has produced the
following results:

(1) Nature and number of properties involved:

Line I Line 2

Lots L Impr L Improvements

o ove o
t men t
s t s

Residential 4 46 3 34
1 8

Commercial 2 24 1 13
5 1

Industrial 5 3 1 1

Church 1 1 1 1

Educational _ _ _ _

TOTAL 7 75 5 49
2 1

(2) Relative value of properties affected:

Lots Improvements T
o
t
a
l

Alignment 1 P9,300,136 P P15,22

5 8,816
,
9
2
8
,
6
8
0
 Alignment 2 8,314,890 6 14,959,
, 020
6
4
4
,
1
3
0

Difference P269,7
96

It is obvious from the immediately table that the right- of-way acquisition cost
difference factor of the two alignment is only P269,196 and not P2M as alleged by
the Department of Public Highways and P1.2M as claimed by the oppositors.
Consequently, the cost difference factor between the two alignments is so minimal as
to be practically nil in the consideration of the issues involved in this case. 10

After considering all the issues and factors, the Human Setlements Commission made the following
recommendations:

Weighing in the balance the issues and factors of necessity, functionality, impact,
cost and property valuation as basis for scheme of compensation to be adopted in
the instant case, the Hearing Board takes cognizance of the following points:

1. The EDSA extension to Roxas Boulevard is necessary and desirable from the
strictly technical viewpoint and the overall perspective of the Metro Manila transport
system.

2. The right-of-way acquisition cost difference factor is so minimal as to influence in

any way the choice of either alignment as the extension of EDSA to Roxas
Boulevard.

3. The negotiated sale approach to compensation as proposed should apply to a

whichever alignment is selected.

4. The factor of functionality states strongly against the selection of alignment 2 while
the factor of great social and economic impact bears grieviously on the residents of
alignment 1.

The course of the decision in this case consequently boils down to the soul-
searching and heart-rending choice between people on one hand and progress and
development on the other. In deciding in favor of the latter, the Hearing Board is not
unmindful that progress and development are carried out by the State precisely and
ultimately for the benefit of its people and therefore, recommends the reverend of the
extension project to alignment 1. However, before the Government, through its
implementing agencies, particularly the Department of Public Highways, undertakes
the actual step of appropriating properties on alignment I to pave the way for the
extension the hearing Board recommends the following as absolute. binding and
imperative preconditions:
 1. The preparation, and ignore importantly, the execution of a comprehensive and
detailed plan for the relocation and resettlement of the adversely and genuinely
affected residents of alignment I which will necessitate the coordinative efforts of
such agencies as the Human Settlements Commission, the National Housing
Authority and other such governmental agencies. To be concrete, a self sufficient
community or human settlement complete with infrastructure capture market, school,
church and industries for employment should be set up to enable the affected
residents of alignment 1 to maintain, their present social and economic standing.

2. The prompt payment of fair and just compensation through the negotiated sale
approach.

Finally, the Hearing Board recommends that the Department of Public Highways
conduct public hearings before undertaking on future expropriations of private
properties for public use.

Respectfully submitted to the Human Settlements Commission Commissioners for

consideration, final disposition and endorsement thereof to His Excellency, the
President of the Philippines.

Makati, Metro Manila, July 4, 1977. 11

... From all the foregoing, the facts of record and recommendations of the Human Settlements
Commission, it is clear that the choice of Fernando Rein — Del Pan Streets as the line through
which the Epifanio de los Santos Avenue should be extended to Roxas Boulevard is arbitrary and
should not receive judicial approval. The respondent judge committed a grave abuse of discretion in
allowing the Republic of the Philippines to take immediate possession of the properties sought to be
expropriated.

WHEREFORE, the petition for certiorari and prohibition is hereby granted. The order of June 14,
1979 authorizing the Republic of the Philippines to take or enter upon the possession of the
properties sought to be condemned is set aside and the respondent Judge is permanently enjoined
from taking any further action on Civil Case No. 7001-P, entitled "Republic of the Philippines vs.
Concepcion Cabarrus Vda. de Santos, etc." except to dismiss said case.

SO ORDERED.

Teehankee, Acting C.J., Makasiar, Guerrero, and Melencio-Herrera Herrera, JJ., concur.

Footnotes

1 Petition, Rollo, P. 7.

2 Petitioner's Memorandum. Rollo pp. 174-177.

3 Memorandum of Respondents, Rollo, p. 156.

4 Petition, Rollo p. 4.
5 Rollo, pp- 5-6.

6 Memorandum of Respondents, Rollo, pp. 161-162.

7 Ibid Rollo, pp. 165-166.

8 Ibid Rollo, p. 166.

9 Report and Recommendation, Rollo, pp. 125- 126.

10 Ibid Rollo, pp. 120-123.

11 Ibid Rollo, pp. 125-126.